Immigration in Employment
Under the Immigration Reform and Control Act of 1986 (IRCA), an employer must verify the identity and employment eligibility of all employees who are hired after 1986 by completing an Employment Eligibility Verification Form (I-9) and reviewing documents that show the employee’s identity and employment authorization. Originally, IRCA was enforced by the Department of Justice, but in 2002, the Department of Homeland Security (DHS) was given the responsibility of IRCA enforcement.
Form I-9 starts with a section on basic biographical information, including certification of citizenship, permanent resident status, or authorization to work. The following section requires the employer to verify and attest under penalty of perjury that an employee presented specified documents to prove identity and the right to work, such as a passport and combinations of other documents.
Although they must verify authorization to work by asking for documents, employers are not permitted to discriminate on the basis of citizenship, immigration status, or national origin with respect to hiring, firing, recruitment, or referral. An employer that asks a job applicant if he or she is a United States citizen or asks any questions about immigration status before making an employment offer may raise the inference that the employer is discriminating on the basis of immigration status. Employers are also prohibited from discriminating against refugees, individuals granted asylum, individuals with temporary visas, or undocumented workers.
All employers must comply with the requirements related to the I-9 form and work authorization verification. IRCA’s anti-discrimination provisions apply to smaller employers than the federal employment discrimination laws enforced by the Equal Employment Opportunity Commission do. For example, IRCA’s national origin discrimination provisions apply to employers with between four and 14 employees, even though they would not be covered by Title VII’s prohibition on national origin discrimination. The citizenship discrimination provision applies to employers that have at least four employees.
Similarly, IRCA prohibits employers from rejecting valid documents or asking for additional documents beyond what is required for verification. An employer cannot only require those individuals believed to be “foreign” to verify employment eligibility or ask them for extra documents. An employee has the right to choose which of the allowed documents to show for employment eligibility verification. If a document appears genuine on its face and belongs to the individual employee, an employer must accept it.
A prospective employer’s failure to accept the documents you submitted or ask for additional documents may give rise to an immigration discrimination claim. For example, if an employer asks you to submit a green card before hiring you, you may have an immigration discrimination claim.
Retaliation Under IRCA
Like other federal anti-discrimination statutes, IRCA prohibits retaliation. Retaliation in this context means taking any kind of adverse employment action on the basis of an individual employee’s assertion of rights under IRCA, or assisting in an investigation or proceeding under IRCA. For example, if a coworker comes to you asking you to speak to his or her lawyer about a claim of immigration discrimination, and you assist in an investigation by providing factual information that supports the employee, your mutual employer cannot hold this against you by threatening to fire you, demoting you, transferring you, or taking any other adverse employment action.