The Immigration Reform and Control Act was passed by Congress in 1986 in order to “control and deter” undocumented migration to the United States. The law, in part, has the goal and effect of sanctioning employers who “knowingly” hire undocumented workers through civil and criminal penalties. IRCA requires employers to complete an employment verification process when hiring any new employee, which includes the use of the Form I-9, Employment Eligibility Verification.
Historical and Political Background
Before IRCA was passed in 1986, the federal government had no regulation in place to deter employment of undocumented workers, and, in fact, had never imposed sanctions on employers before. Realizing that a comprehensive federal verification system for the then five million undocumented immigrants was not plausible, the government shifted the burden of immigration enforcement and liability to employers. Under IRCA, employers are required to use an employment verification system, which is ideally supposed to filter out all of the undocumented workers. The government’s job, then, is to ensure employer’s immigration compliance through civil and criminal sanctions.
IRCA made it unlawful 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,” and to ensure compliance with the new law, Congress established an employment verification system for employers to use. “Knowingly” hiring undocumented workers has been interpreted under IRCA to mean both actual and constructive knowledge that the worker is undocumented, which means that even if employers don’t actually know the worker is undocumented, employers who lack of employment verification policies and procedures are said to have constructive knowledge that a worker lacks work authorization.
The employment verification system provided by IRCA is typically called the Form I-9 process, and it requires employers to examine documents provided by the employee establishing identity and work authorization of the employee. The information from the documents is recorded on a form (the federal I-9 Employment Eligibility Form) and the forms are to be made available to federal officials on request.
For more information on IRCA, and compliance requirements, please check out our training here.
Danielle Atchison, Business Immigration Attorney MDIVANI CORPORATE IMMIGRATION LAW FIRM 7007 College Blvd., # 460, Overland Park, KS 66211 USA Phone :: 913.317.6200 Email :: DAtchison@uslegalimmigration.com