Employers as Junior Immigration Inspectors: The Impact of the 1986 Immigration Reform and Control Act

The Immigration Reform and Control Act of 1986 (IRCA), also known as the Simpson-Rodino Act, is the most significant piece of immigration legislation in over thirty years. It radically revamps this already complicated area of law. Its impact on employers is particularly great, and can be seen in three ways. First, fines of up to $10,000 and even jail sentences can be imposed on businesses that knowingly hire undocumented aliens. Second, every employer must now verify and maintain records on the immigration and citizenship status of each prospective employee, even if the applicant is a U.S. citizen. Third, antidiscrimination provisions prohibit all but the smallest employers from discriminating in hiring or firing on the basis of an individual\u27s national origin or citizenship status. Persons who feel they have been discriminated against may initiate an action against the employer. These provisions create major new responsibilities for businesses, and in effect deputize them as junior immigration inspectors. Employers must now provide the sort of enforcement check that the woefully undermanned Immigration and Naturalization Service (INS) is unable to perform. Lawyers will feel these duties and prohibitions doubly: first in advising their business clients, and second in having to comply themselves, in their own role as employers. This article analyzes the employer sanctions and antidiscrimination provisions of the Simpson-Rodino Act. The article points out ambiguities, gaps, and unanswered questions in the statute and supplementing regulations, and provides practical pointers for attorneys, businesses, and individuals