Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 (IRCA) was the result of six years of legislative activity arising from the report on immigration policy prepared by the Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest (1981). The Select Commission was convened in 1978 under a congressional mandate, and the attention of the commission quickly focused on the best way for the country to regain control of its borders while upholding the traditional American standards of fairness and compassion to immigrants derived from this country's experience as a nation of immigrants. The Final Report and Recommendations of the Select Commission was issued on March 1, 1981.

The Select Commission's Final Report focused on two goals:

control of illegal immigration through a combined approach of sanctions on employers for hiring unauthorized aliens and legalization for undocumented aliens already in the United States, and

overhaul of the legal immigration system and the grounds for exclusion of aliens from the United States.

Congress quickly followed up the Select Commission's work with consideration of a bill submitted by Senator Alan Simpson (R. Wyo.) and Representative Romano Mazzoli (D. Ky.), which included most of the proposals put forward by the commission. The bill was passed in the ninety-seventh and ninety-eighth Congresses by the Senate but failed to receive approval in the House in the ninety-seventh Congress and passed the House in the ninety-eighth Congress in a version that was irreconcilable with the Senate version.

By the commencement of the ninety-ninth Congress in 1985, the cosponsors of the legislation had decided to remove the controversial provisions regarding the revamping of the legal immigration system and the grounds for exclusion, leaving a bill that addressed exclusively those portions of the Select Commission Report concerning control of illegal immigration. After considerable debate, further drastic amendment of the bill in the House under the auspices of Representative Peter Rodino (D.N.J.), and considerable input in the Senate by Senator Edward Kennedy (D. Mass.), the bill finally passed Congress and was signed into law on November 6, 1986.

The law's principal features remained the same as those recommended by the Select Commission: imposition of sanctions on employers hiring unauthorized aliens and legalization of undocumented aliens already in the United States. A full discussion of the obligations imposed on employers by IRCA is included in . In brief, the sanctions provisions of IRCA make it unlawful for an employer to hire or continue to employ an alien knowing him or her to be unauthorized to work in the United States. IRCA also makes it unlawful for an employer to hire any person-citizen or alien-without first following specific verification and record-keeping provisions to assure that the person has authorization to work in the United States. With regard to verification, the law requires that an employer review documents from each newly hired employee indicating the employee's identity and employment authorization; types of documents acceptable to demonstrate identity and employment authorization are listed in the statute, and USCIS regulations elaborate on those documents. As part of the verification procedure, the employer must complete an USCIS form attesting that acceptable documents have been reviewed and that, to the best of the employer's knowledge, the employee is authorized to work in the United States; the employee must also attest on the form that he or she is authorized to work in the United States.

Employers who fail to undertake verification procedures, who do not complete those procedures properly according to the rules, or who fail to maintain verification records as required by the statute are subject to civil fines; in addition, failure to maintain proper records deprives the employer of a defense of good faith if one of its employees turns out to be an unauthorized alien. Nevertheless, the government must still establish that the employer engaged in knowingly hiring or employing an unauthorized alien to penalize the employer for such hiring or employment. Employers are subject to civil fines for knowingly hiring or employment of unauthorized aliens, and can also be subjected to criminal penalties for engaging in a pattern or practice of such hiring or employment.

Because of fears expressed by various groups representing ethnic minorities that IRCA's employer sanctions provisions would give employers an excuse to justify discriminatory hiring practices, IRCA also includes extensive provisions to protect certain groups from discrimination as a result of IRCA-mandated procedures. The statute makes it an "unfair immigration-related employment practice" to discriminate in hiring on the basis of national origin or citizenship status. Protected from this type of discrimination are U.S. citizens, lawful permanent residents, persons granted temporary resident status under IRCA's legalization program, and refugees and asylees. IRCA's protection operates in conjunction with the protections afforded by title VII of the Civil Rights Act of 1964; the protection from discrimination on the basis of national origin included in IRCA covers only those smaller business entities not included in title VII's coverage. Under IRCA, a complaint procedure is established and the Office of Special Counsel created by IRCA has the power to investigate complaints as well as to undertake its own investigations. Employers found to engage in discrimination can be ordered to pay civil fines, to hire an aggrieved party, and to pay back wages.

IRCA provided a mechanism for elimination of employer verification procedures and sanctions if the General Accounting Office (GAO) found after three years that they caused widespread discrimination; in that case, the discrimination provisions would also have been eliminated. Alternatively, IRCA provided a mechanism for elimination of the discrimination provisions if the GAO found no significant discrimination arising from the employer sanctions provisions. In its third-year report, the GAO found that the employer sanctions provisions have caused widespread discrimination; Congress, however, declined to eliminate either the employer verification and sanctions provisions or the discrimination provisions, although discrimination protection was bolstered somewhat in the Immigration Act of 1990. The result is that IRCA's key employment-related provisions remain in place.

The second half of IRCA's framework consisted of several legalization procedures through which aliens residing in the United States without a valid immigration status could regularize their status and eventually become lawful permanent residents of the United States. The principal legalization mechanism provided a two-step process through which aliens who had continuously and illegally resided in the United States since before January 1, 1982, could first become lawful temporary residents and later adjust their status to full permanent residence. A second provision specifically addressed the needs of alien farmworkers, whose status was legalized if they had performed seasonal agricultural services in the United States for at least ninety "man-days" during the year ended May 1, 1986. IRCA imposed no requirement that legalized seasonal agricultural workers (SAWs) continue to engage in farm work after legalization. In anticipation that many farmworkers would move into other occupations, the law also provided for the admission of additional "replenishment agricultural workers" (RAWs) over a four-year period beginning with fiscal year 1990. A determination of the shortfall of agricultural workers for each of those years was to be made by the Secretaries of Labor and Agriculture; no determination of a shortage was made during the life of the program, and, as a result, no aliens were ever admitted under the RAW provisions. A final component of IRCA's provisions with regard to farmworkers was the expansion of the existing program for temporary admission of seasonal workers, by creating a separate nonimmigrant category-the H-2A category-for those workers and mandating detailed rules for admission and treatment of such workers.

Although over a million aliens had their status regularized under IRCA's legalization provisions, many more were unable to do so because of the 1982 cutoff date for prior illegal presence in the United States, already five years before the legalization program went into effect in 1987. Those aliens whose status could not be legalized under IRCA undoubtedly found it increasingly difficult to locate work in the United States in view of the employer sanctions provisions. The initial impact of IRCA was a dramatic decrease in apprehensions of undocumented aliens along the southern U.S. border as word reached source countries that employment would no longer be readily available in the United States. By 1990, however, rates of apprehension had increased to pre-IRCA levels; by the mid-1990s, those rates had reached record levels as sufficient job opportunities for undocumented aliens continued to exist despite IRCA, and fraudulent documentation was relatively easy for illegal immigrants to obtain.