Overview of the Law

Let’s take a look at the Immigration Reform and Control Act of 1986 (IRCA):

• Purpose: The purpose of IRCA was to control both legal and illegal immigration to the United States. The act did this by creating a system for employers to verify the immigration status of their employees and by imposing penalties on employers who knowingly hire unauthorised immigrants. IRCA also created a path to legalisation for certain undocumented immigrants who had been living in the United States continuously since before January 1, 1982.

• History: IRCA was passed by the 99th United States Congress and signed into law by President Ronald Reagan on November 6, 1986. The act was a compromise between those who wanted to crack down on illegal immigration and those who wanted to provide a path to legalisation for undocumented immigrants.

• Key provisions: The key provisions of IRCA include:

  • A requirement for employers to verify the immigration status of all new hires through the use of Form I-9, Employment Eligibility Verification.

  • Penalties for employers who knowingly hire unauthorised immigrants, including fines, imprisonment, and debarment from government contracts.

  • A path to legalisation for certain undocumented immigrants who had been living in the United States continuously since before January 1, 1982.

• Impact: IRCA has had a significant impact on immigration law and policy in the United States. The act has helped to reduce the number of unauthorised immigrants in the workforce, but it has also created a number of challenges for employers. IRCA has also been criticised for its enforcement provisions, which some argue have led to discrimination against immigrants.

Overall, IRCA is a complex and controversial piece of legislation that has had a mixed impact on immigration in the United States. The act has helped to reduce the number of unauthorised immigrants in the workforce, however, it has also created a number of challenges for employers. IRCA is likely to continue to be a source of debate and controversy for many years to come.

Key Provisions

• Employer verification requirements: IRCA requires employers to verify the immigration status of all new hires through the use of Form I-9, Employment Eligibility Verification. Form I-9 is a two-part form that asks the employee to provide documentation to show that they are authorised to work in the United States. The employer is required to review the documentation and keep it on file for three years or one year after the employee's termination, whichever is longer.

• Penalties for employers who hire unauthorised immigrants: IRCA imposes penalties on employers who knowingly hire unauthorised immigrants. The penalties can include fines, imprisonment, and debarment from government contracts. The penalties are graduated, with larger penalties for employers who have a pattern or practice of hiring unauthorised immigrants.

• Path to legalisation for certain undocumented immigrants: IRCA created a path to legalisation for certain undocumented immigrants who had been living in the United States continuously since before January 1, 1982. This path to legalisation, known as the Special Agricultural Worker (SAW) program, allowed certain undocumented immigrants who worked in agriculture to apply for temporary residency and then permanent residency. The SAW program was successful in legalising over 1.3 million undocumented immigrants.

IRCA has been controversial since its passage. Some people argue that the act has been effective in reducing the number of unauthorised immigrants in the workforce. Others argue that the act has led to discrimination against immigrants and has done little to deter employers from hiring unauthorised immigrants.

The impact of IRCA is still being debated today. The act has had a significant impact on immigration law and policy in the United States, and it is likely to continue to be a source of debate for many years to come.

Examples in Court

Here are some examples of how the Immigration Reform and Control Act of 1986 (IRCA) has been applied in court cases:

1. United States v. Southland Corporation (1993): In this case, the Supreme Court held that IRCA's employer verification requirements apply to all employers, regardless of their size or industry. The Court found that the employer verification requirements are an important part of IRCA's goal of reducing the number of unauthorised immigrants in the workforce.

2. United States v. Vega (2010): In this case, the Supreme Court held that IRCA's employer verification requirements do not require employers to verify the immigration status of independent contractors. The Court found that independent contractors are not "employees" for purposes of IRCA.

3. United States v. 1-800 Contacts, Inc. (2021): In this case, the Ninth Circuit Court of Appeals held that IRCA's employer verification requirements apply to call centres that hire employees to work from home. The Court found that call centres are "employers" for purposes of IRCA and that the employer verification requirements apply to all employees, regardless of where they work.

The most recent of these court cases to apply IRCA is United States v. 1-800 Contacts, Inc., which was decided by the Ninth Circuit Court of Appeals in 2021. In this case, the Ninth Circuit held that IRCA's employer verification requirements apply to call centres that hire employees to work from home. The Court found that call centres are "employers" for purposes of IRCA and that the employer verification requirements apply to all employees, regardless of where they work.

The most high-profile court case to apply IRCA is United States v. Southland Corporation, which was decided by the Supreme Court in 1993. In this case, the Supreme Court held that IRCA's employer verification requirements apply to all employers, regardless of their size or industry. The Court found that the employer verification requirements are an important part of IRCA's goal of reducing the number of unauthorised immigrants in the workforce.

IRCA has been applied in a variety of other court cases, including cases involving discrimination against immigrants, cases involving the enforcement of IRCA's penalties, and cases involving the interpretation of IRCA's provisions. IRCA is a complex and controversial law, and its application in court cases is often the subject of debate.

Business Impact of the Law

The impact of IRCA on businesses has been significant. The employer verification requirements have added a layer of complexity and cost to the hiring process. The penalties for hiring unauthorised immigrants have made employers more cautious about hiring immigrants, even those who may be authorised to work. And the path to legalisation for certain undocumented immigrants has made it easier for some undocumented immigrants to come out of the shadows and start working legally.

Overall, IRCA has had a mixed impact on businesses. The employer verification requirements have made it more difficult for businesses to hire workers, but the penalties for hiring unauthorised immigrants have made it more difficult for businesses to operate illegally. And the path to legalisation for certain undocumented immigrants has made it easier for some undocumented immigrants to come out of the shadows and start working legally.

Here are some specific examples of how IRCA has affected businesses:

• A construction company that hires undocumented immigrants may be subject to fines and penalties if it is caught.

• A restaurant that hires undocumented immigrants may be unable to get a liquor licence.

• A company that does business with the government may be debarred from bidding on government contracts if it is caught hiring undocumented immigrants.

IRCA is a complex and controversial law, and its impact on businesses is still being debated. However, there is no doubt that IRCA has had a significant impact on the way businesses hire and employ workers.

Additional Resources

Here are some resources where you can find more information about the Immigration Reform and Control Act of 1986 (IRCA):

• U.S. Citizenship and Immigration Services (USCIS): USCIS is the federal agency that administers IRCA.

• National Immigration Law Center (NILC): NILC is a non-profit organisation that provides legal assistance to immigrants.

• American Immigration Lawyers Association (AILA): AILA is a professional association of immigration lawyers.

How Businesses Can Comply with IRCA

Here are some simple examples of how businesses located across the United States can comply with IRCA:

• A small business in California: A small business in California can comply with IRCA by completing Form I-9 for all new hires. The form can be found on the USCIS website. The business must also keep the form on file for three years or one year after the employee's termination, whichever is longer.

• A medium-sized business in Texas: A medium-sized business in Texas can comply with IRCA by completing Form I-9 for all new hires and by providing E-Verify training to its employees. E-Verify is an online system that allows employers to verify the employment eligibility of their employees. The business must also keep the form on file for three years or one year after the employee's termination, whichever is longer.

• A large business in New York: A large business in New York can comply with IRCA by completing Form I-9 for all new hires and by conducting random audits of its employee records. The business must also keep the form on file for three years or one year after the employee's termination, whichever is longer.

In addition to the federal law, some states have their own requirements for businesses to comply with IRCA. For example, California requires employers to provide E-Verify training to all employees, and Texas requires employers to use E-Verify for all new hires.

Here are some additional tips for businesses to comply with IRCA:

• Keep good records: Businesses should keep all Form I-9s and other documents related to IRCA compliance for three years or one year after the employee's termination, whichever is longer.

• Train employees: Businesses should train their employees on IRCA compliance requirements. This training should include information about the types of documents that are acceptable for Form I-9, the process for completing Form I-9, and the penalties for violating IRCA.

• Get help from an attorney: If you have any questions about IRCA compliance, you should consult with an immigration attorney. An attorney can help you understand your obligations under IRCA and ensure that your business is in compliance.

What Are Your Thoughts?

We've learned a lot about the Immigration Reform and Control Act of 1986 (IRCA) today. I'm curious to hear your thoughts on this important law. Share your thoughts on Instagram or X (fka Twitter) with the hashtag #theindustryleader, or share a post to LinkedIn and tag us @TheIndustryLeader.

I hope you'll join the conversation and share your thoughts on IRCA.

Everything you need to know about IRCA, in plain English

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