Immigration Reform and Control Act (IRCA)
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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 aliens (aliens are people who are not U.S. citizens or nationals. Nationals are born in the outlying possessions of the United States, such as American Samoa) who are authorized to work in the US.
- Secondly, the IRCA prohibits employers from discriminating against US citizens, US nationals, and authorized aliens 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.
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 Illegal Immigrant 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 Illegal Immigrant
If you discover that someone you hire is an illegal immigrant, 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.
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Katie is currently studying at BYU, with a HRM major and Statistics minor. She works there as an HR research assistant and also works as an HR Generalist at a local company, and both jobs provide her with a wide variety of experiences. Katie’s passion lies in HR and People Analytics, where she can discover and use data to help everyone understand and improve the workplace for a universal benefit.
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