What Is the Immigration Reform and Control Act?

The Immigration Reform and Control Act (IRCA) has three aims.

  • It seeks to preserve jobs for those who are legally entitled to them—both American citizens and non-citizens—who are authorized to work in the US. Non-citizens are people who are not US citizens or nationals. Nationals are born in the outlying possessions of the United States, such as American Samoa.
  • Secondly, the IRCA prohibits employers from discriminating against US citizens, US nationals, and authorized non-citizens based on their national origin or immigration status.
  • Thirdly, it prohibits employers from knowingly hiring, recruiting, or referring for a fee anyone who is not authorized to work in this country.

History of the Immigration Reform and Control Act

The IRCA was signed into law in 1986. It was the first revision to America’s immigration law for decades. It came about due to an increase of refugees coming to the US. The goal of IRCA was to help control the exceedingly high rates of illegal immigration that existed at the time.

What Must Employers Do to Comply?

Here are the basic steps you must take to adhere to IRCA.

Establish a Policy

Establishing a policy in your employee handbook communicates to all employees the importance of correctly filling out I-9 forms. Sometimes HR might request the help of another authorized employee to fill out the I-9, and having a policy can help ensure it is done correctly. For example, this might happen when the company has branches in multiple locations, but HR is located at the headquarters. HR might authorize the managers there to fill out a new employee’s I-9. Having a policy explains the process to the manager and shows the importance of filling it out correctly.

Complete the I-9 Form

An employer must complete the I-9 form for all new hires. This form confirms and documents that the new hires are authorized to work in the US.

Accept Any Document Allowed by Law

Employers cannot prefer one document over others for purposes of completing the I-9 Form. As long as the documents are allowed by law and appear genuine, they should be accepted. A list of acceptable documents is found in the I-9 form.

Prevent Discrimination

Employers should take the actions necessary to prevent any discrimination due to national origin or citizenship status. This can be done in multiple ways:

  • Don’t ask for a country of citizenship or proof of immigration during the interview process.
  • Check for work authorization only after an offer has been made.
  • Make sure you do not knowingly recruit or hire undocumented workers.
  • Be alert to catch and resolve your own bias or expectations about individuals who come from certain countries.

What to Do if an Undocumented Worker Applies

When you find out that an applicant does not have work authorization, it can be hard to know what to do. Here are a few steps you can take.

Sponsor the Employee

Depending on the job requirements, it might be possible to sponsor the employee. Both you and the employee will need to fit many requirements in order to obtain an immigrant visa (sometimes known as a green card). There are many resources to help you learn more, such as this legal encyclopedia.

Withdraw the Offer

If you do not wish to or cannot sponsor the applicant, you must reject their application. While you should do this kindly, you can inform them that you are abiding by the laws required by the IRCA.

What to Do if You Discover Someone You Hired Is an Undocumented Worker

If you discover that someone you hire is an undocumented worker, you’ll want to collect all evidence of this, including the name of the employee and the length of time they have been working for you. After you have that, you will write a letter to U.S. Citizenship and Immigration Services, giving them all the evidence you collected. Carefully show that you followed proper hiring procedures and that the worker was hired unknowingly. If you can’t show this, you may face legal repercussions.

What Are the Legal Repercussions for Breaking This Law?

Failing to comply with IRCA can lead to civil or criminal penalties. These can be substantial fines, ranging from $100 to $5000 per hire. A pattern of noncompliance with the IRCA may lead to imprisonment. Lastly, for the hired employee, it will result in termination of employment.

Ways of breaking this law include, but are not limited to, the following:

  • Knowingly recruiting, hiring or referring with a fee an immigrant who is not authorized to work in the US.
  • Continuing to employ an immigrant who is unauthorized to work.
  • Failing to comply with the I-9 employment verification requirements.
  • Committing or participating in document fraud.
  • Unlawful discrimination again an employment-authorized individual in regards to hiring, firing, or recruitment.