Immigration Reform and Control Act (IRCA)

The Immigration Reform and Control Act (IRCA) of 1986, which amended the Immigration and Nationality Act, was a landmark legislation in the U.S. that sought to control and deter illegal immigration. The Act made it illegal for employers to knowingly hire undocumented migrants and established penalties for companies that did so. Additionally, the IRCA provided provisions for certain undocumented migrants to apply and gain legal status.

What Does the IRCA of 1986 Require of Employers?

The IRCA mandates that employers verify the employment eligibility of all individuals hired, ensuring that they have the right to work in the U.S. This involves the completion of Form I-9, Employment Eligibility Verification, for every new hire. Employers must retain these forms and produce them if requested by the Immigration and Naturalization Service or other relevant authorities.

What Are Some of the Requirements for Employees and Applicants?

Employees and applicants are required to provide documentation proving both their identity and their eligibility to work in the U.S. Such documentation can include a U.S. passport, a Certificate of U.S. Citizenship, a Permanent Resident Card, or a combination of other documents, like a state-issued driver’s license along with a social security card.

If the individual is authorized to work in the U.S. for a specific period, they must provide documents that specify the authorized period, such as an employment authorization document.

The most common of these is the Employment Authorization Document (EAD), but there are other documents. Let’s dive deeper into these.

1. Employment Authorization Document

The EAD, often called a work permit, shows employers that the individual can work in the U.S. for a specified period.

To obtain an EAD, an individual must file Form I-765, Application for Employment Authorization, with U.S. Citizenship and Immigration Services (USCIS). The specific eligibility categories and requirements can vary, so the applicant should ensure they fit into one of the categories before applying.

EADs are usually valid for one year, but the validity period can vary based on the individual’s immigration status or situation.

2. Form I-94, Arrival/Departure Record, Accompanied by a Valid Foreign Passport

Some nonimmigrants, such as certain students or exchange visitors, are admitted to the U.S. for a specific period or purpose. Their Form I-94, especially if accompanied by a valid foreign passport, can sometimes be evidence of work authorization.

Form I-94 is typically issued upon entry into the U.S. It’s available in paper and electronic forms. The U.S. Customs and Border Protection website can retrieve the electronic version.

3. Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, for F-1 Students

F-1 students may be eligible for certain types of employment, such as on-campus work or Optional Practical Training (OPT).

The student’s designated school official (DSO) provides the Form I-20, and any work authorization is typically noted directly on the form.

4. DS-2019, Certificate of Eligibility for Exchange Visitor Status, for J-1 Exchange Visitors

J-1 exchange visitors might be authorized for specific types of employment or training based on their program.

The program sponsor issues the DS-2019 and can provide details about any employment or training the J-1 visitor is authorized to undertake.

5. Temporary Employment Visas

Certain visas, like H-1B, L-1, or O-1, are employment-based. The visa itself, along with the I-94, can serve as proof of employment authorization.

The process varies based on the specific visa type, but it generally involves a petition filed by a U.S. employer with USCIS, followed by a visa application with the U.S. Department of State.

For all these documents, ensuring that they remain valid and are renewed as necessary is crucial. Overstaying or working beyond the authorized period can have serious immigration consequences. If someone is unsure about their work authorization or how to obtain the right documents, consulting with an immigration attorney is a wise step.

What Are the Penalties Imposed by the Immigration Reform and Control Act?

Employers that fail to properly complete, retain, or produce I-9 forms when requested can face civil fines. Those who knowingly hire or continue to employ unauthorized workers can face criminal penalties, including fines and imprisonment.

Penalties can vary depending on the severity and frequency of violations, ranging from hundreds to thousands of dollars per unauthorized worker. In severe cases, businesses may also face the termination of their business licenses or employment contracts.

Here are examples of each type of violation under the IRCA and the potential penalties that can be levied against offending employers:

Failure to Properly Complete, Retain, or Produce I-9 Forms

• Example: A routine audit by the Immigration and Customs Enforcement (ICE) reveals that a small restaurant did not complete I-9 forms for 10 employees.
• Penalty: This kind of paperwork violation can lead to broad fines, often depending on factors like the size of the business and the extent of the negligence. A small first-time offender might be fined anywhere from $230 to $2,292 per form.

Knowingly Hiring Unauthorized Workers

• Example: After being informed that several of its workers provided fake Social Security numbers, a construction company decides to turn a blind eye and continues employing them.
• Penalty: For first offenders, penalties can range from $573 to $4,586 per unauthorized worker. If the employer is found to have engaged in a pattern of these violations, they could face more severe criminal penalties, potentially including imprisonment.

Continuing to Employ Unauthorized Workers

• Example: A factory receives a notice from ICE stating that 5 of its employees are unauthorized to work in the U.S. However, the factory keeps these workers on the payroll instead of taking appropriate action.
• Penalty: The fines for a first offense in this category can range from $573 to $4,586 for each unauthorized worker. The fines can increase with repeated violations, and the company might also face more stringent sanctions.

Engaging in a Pattern of Hiring Unauthorized Workers

• Example: Over several years, a large agricultural farm is found to have repeatedly and intentionally hired unauthorized workers for seasonal work, dismissing them and rehiring others in a cyclical pattern.
• Penalty: This is a severe violation. The company’s management can face criminal charges. If convicted, fines can be substantial, and imprisonment of up to 6 months is also possible. This kind of pattern also puts the business at risk of other legal actions and could even lead to a revocation of business licenses.

Termination of Business Licenses or Employment Contracts

• Example: A tech company with a government contract is found to have knowingly employed unauthorized workers in critical positions.
• Penalty: Apart from the fines for hiring unauthorized workers, the company can lose its government contract. Additionally, depending on state laws and the severity of the violation, it may face the suspension or revocation of its business license.

It’s worth noting that these are examples and that the actual penalties can vary based on the specific circumstances of each case, the size of the business, the level of cooperation during investigations, and other factors. If a business finds itself in such a situation, immediate consultation with an experienced immigration attorney is essential.

Should I Contact a Lawyer?

If you have questions regarding the Immigration Reform and Control Act, hiring practices, or your rights and responsibilities as an employer or employee, consulting with a lawyer is beneficial. An experienced immigration lawyer can guide you on these issues and ensure compliance with all relevant laws. Find the right lawyer for you through LegalMatch.