Law Office of Bonnie Stern Wasser
—Bringing People Together—
Employer Sanctions and The Immigration Reform and Control Act of 1986 (IRCA)
By Bonnie Stern Wasser, Esq.
© 2005
The following information is intended to be very general in nature and should not be substituted for specific legal advice as there are many exceptions, definitions and court interpretations about this subject. It is recommended that one consult a qualified attorney and enter into a confidential written attorney client relationship.
As of November 6, 1986, ALL employers in the USA, regardless of size, are subject to sanctions (civil fines with the potential for criminal penalties) if they hire, recruit or refer for a fee ANYONE after November 6, 1986 who does not have proof of permission to work in the United States. There are two types of violations:
Record Keeping Violations
Every individual and employer is required to document on Form I-9 the work permission status of each employee hired, recruited or referred for a fee after November 6, 1986. The form must be completed both by the employee (US citizens and foreign workers alike) and the employer under penalty of perjury. The back of the form and the accompanying handbook contain the list of acceptable documents. The employer must physically inspect the work documents supplied by the worker. Failure to complete the I-9 as well as failure to properly complete and retain the form for the specified period can result in fines for each record keeping violation. There are some limited exceptions for certain “grandfathered” employees and specified types of independent contractors.
Hiring of "Unauthorized Workers"
Individuals and employers may also be fined for “knowingly” hiring, recruiting or referring for a fee “unauthorized aliens.” “Knowingly” has been interpreted to include “constructive knowledge”. That is, given the facts and circumstances, should a reasonable, average employer have been on notice that the employee lacked proper documents (failed to submit them, presented obviously fraudulent documents, or the employer had other information from which a reasonable person could conclude the worker was not authorized). An unauthorized alien includes illegal aliens as well as any alien legally in the US but without specific work authorization from Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS, formerly known as the INS). Again, the employer may be fined for every unauthorized alien hired after November 6, 1986. An employer can be held criminally liable as well for having a “pattern or practice of knowingly hiring unauthorized aliens.”
How does DHS find out about such violations?
There are several ways the DHS/Immigration and Customs Enforcment (ICE) can decide to audit an employer:
- Random or targeted industry audits;
- Referrals from other government agencies, such as the Wage and Hour Division of the US Department of Labor (DOL), the Workforce Agency Department of DOL in the course of reviewing labor certification applications or the CIS in the course of reviewing visa petitions filed on behalf of illegal aliens, the IRS and OSHA audits, or other criminal investigations, etc.
- Tips from competitors, co-workers, neighbors, spurned lovers, etc.
What is the likelihood an employer will be audited?
No one can say for sure. It would depend upon the type and quality of the tips the ICE has as listed above, or if the employer is in a “notorious” industry that is the subject of frequent audits or raids. ICE has certain priorities, such as chronic violators, criminal aliens and fraudulent document manufacturers. However, the US Congress has allocated substantial revenues toward ICE enforcement of IRCA that includes recent and future additional hiring of investigators for this purpose.
Don’t forget that not only is the employer potentially liable for fines, but any unauthorized alien discovered in the course of the raid or an audit can be put into removal proceedings.
Anti-discrimination
IRCA also includes provisions that prohibit certain employers from discrimination in their hiring, recruitment, referrals or discharge practices because of citizenship status or national origin. IRCA protects from discrimination US citizens, intending citizens who are legal permanent residents, refugees and asylees, and legalization applicants with at least temporary residence. There are some exceptions. Of particular concern, employers may not require specific documents for I-9 purposes from some employees and not from others, especially when workers from different ethnic groups are asked to present different documents. Instead, employers should let the employee select from the list of acceptable documents what he or she will present for verification.
IRCA set up an administrative procedure for pursuing discrimination claims based on national origin and citizenship status with the development of the Office of Special Counsel within the US Department of Justice. The Special Counsel investigates such claims. If a complaint is formally filed, proceedings continue before a special Administrative Law Judge who has the power to impose cease and desist orders, payment of back wages and fines, and to compel hiring of individuals. Review is available in the Federal Court of Appeals.
