The Anti-Discrimination provision of the Immigration Reform and Control Act of 1986 (IRCA) states that it is an unfair immigration-related employment practice for a person or other entity who employs more than three people to discriminate against any individual, other than an unauthorized alien, with respect to the hiring, recruitment, or referral for a fee of the individual for employment or the discharging of the individual from employment because of the individual’s perceived national origin or because of the individual’s perceived citizenship status. 8 USC 1324b(a)(1)(A)-(B).
No-Match
     Under the No-Match regime, an employer is shielded from discrimination liability if the employer uses a procedure to comply with the No-Match letter that is applied uniformly to all employees who appear on the no-match letter; without regard to perceived national origin or citizenship status; and without actual intent to discriminate on the basis of perceived national origin or perceived citizenship status. A timeline for compliance with the No-Match is provided.
E-Verify
     Under E-Verify, employers must sign the Memorandum of Understanding (MOU) when they register for E-Verify. The MOU requires employers to copy and maintain copies of only certain documents: the Permanent Resident Card (Form I-551) or Employment Authorization Document (Form I-766). The MOU for designated agents, on the other hand (i.e. third parties that the employer contracts to handle E-Verify) does not require employers to make and keep copies if the employer uses a designated agent for E-Verify. The discrimination issue here is that the MOU only requires the employer to copy non-citizens’ documents. Retention of all employee documents would a set period would, in general, evidence non-discrimination.
     Moreover, E-Verify has a distinct timeline from the safe-harbor provisions under No-Match. Upon receipt of a “Tentative Nonconfirmation” from E-Verify, the employer has a duty to inform the employee of his right to contest this tentative finding. The employee has eight work days to resolve any discrepancy in the SSA records. Overlapping this eight-day period, SSA and ICE have ten work days to respond to the Tentative Nonconfirmation. During this ten-day period, the employer may not terminate or take any other adverse action against the employee.
     Upon receipt of a “Final Nonconfirmation,” the employer may terminate the employee and cannot be civilly or criminally liable under any law for the termination, so long as the action was taken in good faith reliance on information provided through the confirmation system. If the employer continues to employ the employee, the employer must notify DHS of this continued employment through the automated system. Failure to so notify is a finable offense. Moreover, continued employment of this alien creates a rebuttable presumption that the employer engaged in knowing employment of an unauthorized alien.