Immigration Employment Verification: Charting a Course between the Devil and The Deep Blue Sea

As President Obama hits the campaign trail for immigration reform this week, let’s take a look back at the last time Congress created a pathway for illegal immigrants to regularize their status:  The Immigration Reform and Control Act of 1986 (IRCA).  Passed by both houses of Congress and signed into law by President Regan in 1986, IRCA amended the Immigration and Nationality Act (INA) to permit individuals who had been illegally present in the United States since January 1, 1982 to regularize their status.

In the horse trading that is the legislative process, the following deal was struck:  In exchange for the amnesty for illegal immigrants described above, IRCA added a provision to the INA that required employers to verify the immigration status of their employees.  IRCA criminalizes the employment of illegal aliens, and somewhat paradoxically, prohibits employers from discriminating in hiring decisions on the basis of citizenship or immigration status.  Thanks to IRCA, employers must sail between Scylla and Charybdis.  They walk a tightrope between the twin evils of hiring unauthorized aliens and discriminating on the basis of alienage with every hiring decision.

Although all the individuals who benefited from IRCA’s amnesty have long since received permanent residence and naturalized, the employer mandates of IRCA live on today.  IRCA’s mandates on employers are enforced by two separate agencies:  The Civil Rights Division of the Department of Justice and the Department of Homeland Security’s Immigration and Customs Enforcement.  As the two news articles listed below indicate, both agencies have been busy.

1.       On March 8, 2011 Rick M. Vartanian, the president and primary shareholder of Brownwood Furniture, was sentenced to ten months in federal prison for obstruction of justice and the employment of illegal aliens.  Mr. Vartanian was also ordered to pay a $15,000 fine.  Read about Mr. Vartainian’s troubles here and here.

2.       On April 26, 2011 the Civil Rights Division of the US Justice Department announced a settlement agreement with Restwend, LLC, the operator of several Wendy’s restaurants in Maine.  The Justice Department accused Restwend of engaging in illegal employment discrimination against non-US citizens by only hiring US citizens to work in its restaurants.  Restwend agreed to pay a fine, back pay to the potential worker that was discriminated against, and to train its human resources staff.  Read about Restwend’s settlement here and here.

Immigration enforcement is on the rise.  Employers should consider consulting with competent immigration counsel before charting a course between the devil and the deep blue sea.


Copyright 2011 Richard M. Green, All Rights Reserved