The IRCA I-9 Guide

AuthorCharles M. Miller/Daniel Brown/Marcine Anne Seid
ProfessionFounding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for an
employer, recruiter, or referrer for a fee to knowingly hire an unauthorized alien for U.S.
employment.1 Under the IRCA verication system, all employers are required to examine
the documentation of identity and the legal right to work of every new employee, whether
U.S. citizen or alien, hired after November 6, 1986. Employers in the Commonwealth of
the Northern Mariana Islands (CNMI) are required to complete Form I-9 for each new
employee hired after November 27, 2011.
Employer sanctions laws are found in amendments to the Immigration and Nation-
ality Act (INA), the corresponding U.S. Code sections, and in the regulations found in
8C.F.R. § 274a. Policy guidance is found in the amended Form I-9, its instructions, online
on the U.S. Citizenship and Immigration Services (USCIS) website, and in the Handbook
for Employers: Guidance for Completing Form I-9.2
U.S. employers or recruiters for a fee have the duty to ensure that every newly hired
employee completes and signs section 1 of Form I-9 on the rst day of work for pay. The
employer’s verication responsibilities include ensuring that section 1 is completed on a
timely basis by the employee, that the employee’s documentation of identity and employ-
ment eligibility is examined, and that the employer’s certication portion of Form I-9
form in section 2 is completed no later than the third day after the employee begins work
1. Act of Nov. 5, 1986, Pub. L. No. 99.603, codied at INA § 274A(a)(l)(A), 8 U.S.C. § 1324a(a)
2. U.S. C  I S (USCIS), H  E: G-
  C F I-9 (Rev. 2017), central/handbook-
employers- m-274 [hereinafter H  E]; see Appendix E.
The IRCA I-9 Guide
116 Immigration Compliance and Best Practices
for pay.3 An employee hired for a period of less than three days must present the required
documents on the rst day of employment.4
The INA provides that it is unlawful for a person or other entity to hire or to recruit
or refer for a fee for employment in the United States an alien knowing the alien is an
unauthorized alien,5 and it is unlawful to hire a person for employment in the United States
without complying with the attestation requirements.6 Section 2 of Form I-9 contains the
employer certication, made under penalty of perjury, which certies employer knowledge
of the employee’s authorization for employment after an examination and conclusion that
the identity and eligibility documents appear to be genuine and relate to the named person.7
Employers must be aware that there are different denitions of entities with regard to
general I-9 verication rules. For general I-9 verication purposes, each subdivision of a
company may be considered a separate employer for purposes of determining sanctions
penalty levels and criminal liability, but only if the subdivision has separate authority
for hiring, recruiting, or referring for employment without reference to the practices of
another subdivision and is not under the common control of the central hiring authority.8
Under the general I-9 verication rules, an employer is “a person or entity, including an
agent or anyone acting directly or indirectly in the interest thereof, who engages the ser-
vices or labor of an employee to be performed in the U.S. for wages or other remunera-
tion.”9 A “person” is “an individual or an organization. An “entity” is “any legal entity,
including but not limited to, a corporation, partnership, joint venture, governmental body,
agency, proprietorship, or association.10
A person or entity that uses contract labor or services, however, is not considered the
employer of the contract worker for labor of services. An exception applies if a business
owner has knowledge that the contract workers are unauthorized aliens.11
Nonagricultural recruiters and referrers for fees are not required to conduct the I-9
verication process; however, agricultural associations, agricultural employers, and farm
labor contractors must comply with the I-9 requirements.12
3. H  E § 2; see Appendix E; USCIS, I-9 C, https://www.uscis.
gov/i-9- central.
4. H  E § 2; see Appendix E; USCIS, I-9 C, https://www.uscis.
gov/i-9- central.
5. INA § 274A(1l)(I). 8 U.S.C. § 1324a(a)(I).
6. INA § 274A(1l)(I)(R)(i), 8 U.S.C. § 1324a(a)(1)(R)(i).
7. H  E § 4; see Appendix E; Form I-9 § 2; see Appendix B.
8. 8 C.F.R. § 274a.10(b)(3).
9. 8 C.F.R. § 274a.1(g).
10. 8 C.F.R. § 274a.1(b).
11. INA § 274A(a)(4); 8 U.S.C. § 1324a(a)(4).
12. 8 C.F.R. § 274a.2(a).
The IRCA I-9 Guide 117
The employer is not required to undertake I-9 verication for the following categories of
Persons hired after November 6, 1986, who left the job before June 1, 1987;13
Persons employed for domestic work in a private home that is “sporadic, irregular,
or intermittent”;14
Persons who are independent contractors and their employees, unless the contract
was entered into, renegotiated, or extended after November 6, 1986, to obtain the
services of unauthorized aliens;15 and
Persons who, though providing services to the employer under contract with an
independent contractor, are employees of that contractor. An independent contrac-
tor includes individuals or entities that carry on independent business, contract to
do a piece of work according to their own means and methods, and are subject to
control only as to results. Many factors are considered when determining whether
an individual or entity is an independent contractor. Although the individual or
business contracting the independent contractor is not required to complete Form
I-9, federal law prohibits individuals or businesses from contracting with an inde-
pendent contractor knowing that the independent contractor is not authorized to
work in the United States.16 Independent contractors17 are individuals or entities
that may
contract to do a job according to their own means and methods.
supply their own tools or materials.
offer their services to the general public.
work for a number of clients at the same time.
have an opportunity for prot or loss as a result of labor or services provided.
invest in facilities to do all or part of the work.
direct the order in which the work is to be done.
determine the hours during which the work is to be done.
be subject to control only as to results.
be individuals not physically working in the United States.
13. 8 C.F.R. § 274a.7(a).
14. 8 C.F.R. § 274a.1(h).
15. 8 C.F.R. § 274a.5.
16. USCIS, Who Needs the Form I-9?, I- C (Oct. 25, 2017),
central/complete- correct- form- i-9/who- needs- use- form- i-9/who- needs- form- i-9.
17. Id.

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