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The IRCA and Immigration Discrimination in the Workplace

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the identity and employment eligibility of all employees, dating back to when the law was passed. This is done by completing the Employment Eligibility Verification Form (I-9) and carefully reviewing the employee’s documents that establish their identity and employment authorization. Regardless of these requirements, employers are still prohibited from discriminating against employees or applicants based on their immigration status or their nationality. Here are a few things you should know about the IRCA and immigration discrimination in the workplace.

Completing the I-9 Form

All employers have an obligation to comply with the I-9 form and work authorization verification requirements. Form I-9 includes basic biographical information, including certification of citizenship, permanent resident status, and authorization to work in the United States. Employers are also required to verify and attest under penalty of perjury that the employee has provided them with specific documents proving their identity and right to work. These documents can include a passport or a combination of other documents.

Immigration Discrimination is Prohibited

Despite an employer’s need to request immigration information from its employees, they are not allowed to discriminate against employees or job applicants based on their citizenship, immigration status, or national origin. This includes making decisions regarding hiring, firing, recruitment, or referrals based on those factors. Indeed, employers who ask an applicant if he or she is an American citizen or ask questions about immigration status prior to making a job offer, might be creating an inference of immigration discrimination. These prohibitions against immigration discrimination include discriminating against refugees, persons who have been granted asylum, individuals holding temporary visas, or undocumented workers.

Does the IRCA Apply to All Employers?

The anti-discrimination provisions of the IRCA apply to more employers than those covered under the federal employment discrimination laws enforced by the Equal Employment Opportunity Commission because the IRCA attaches to employers with fewer employees. For instance, IRCA’s national origin discrimination provisions apply to employers that have between 4 and 14 employees. Those employers would not be covered by Title VII’s national origin discrimination prohibitions. The IRCA citizenship discrimination provisions likewise apply to employers with at least four employees.

Examples of Discriminatory Actions Based on Immigration Status or National Origin

The IRCA further prohibits employers from rejecting valid documents offered by an employee or applicant, and from requesting more documents than what is required for verification. Additionally, it is improper for employers to only require individuals believed to be “foreign” to verify employment eligibility or to ask those individuals for extra documents. In other words, all employees must be required to provide the same information. Also, an employee has the right to choose which of the acceptable documents to provide for employment eligibility verification. If the document appears genuine on its face and belongs to the employee or applicant, the employer is required to accept that document.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!