Multi-American | How immigrants are redefining 'American' in Southern California

Illegal hiring 101: IRCA, employer sanctions and the underground economy

A cash payment, June 2007
A cash payment, June 2007
Photo by Quazie/Flickr (Creative Commons)

The scandal that erupted last week over gubernatorial candidate Meg Whitman's nine-year employment of an undocumented housekeeper has thrown a spotlight on Americans' dependence on unauthorized labor, in the home and in the general economy.

Employer sanctions for hiring unauthorized workers fall under the Immigration Reform and Control Act of 1986, a sweeping piece of immigration reform legislation that granted amnesty to nearly three million undocumented immigrants, but which was also intended to dampen the appeal of coming to the United States illegally to work through employer sanctions. IRCA made it illegal to knowingly hire or recruit undocumented immigrants.

Here is a summary of the law from the Library of Congress:

Immigration Reform and Control Act of 1986

Title I: Control of Illegal Immigration - Part A: Employment

Amends the Immigration and Nationality Act to make it unlawful for a person or other entity to: (1) hire (including through subcontractors), recruit, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work, or any person without verifying his or her work status; or (2) continue to employ an alien knowing of such person's unauthorized work status.

Makes verification compliance (including the use of State employment agency documentation) an affirmative defense to any hiring or referral violation.

Establishes an employment verification system. Requires: (1) the employer to attest, on a form developed by the Attorney General, that the employee's work status has been verified by examination of a passport, birth certificate, social security card, alien documentation papers, or other proof; (2) the worker to similarly attest that he or she is a U.S. citizen or national, or authorized alien; and (3) the employer to keep such records for three years in the case of referral or recruitment, or the later of three years or one year after employment termination in the case of hiring.

The full text of IRCA is also online.

Has the employer sanctions portion of the lawworked? From the estimated size of the undocumented population in the United States, the bulk of which is in the work force, not so much. Employers must knowingly hire an unauthorized worker to be in violation of the law, and prospective employees must present work documents. But if a worker presents what appears to be valid work documents (as in the Whitman case), the employer is not required to verify their authenticity.

The resulting loophole has made it common for workers to present false or borrowed Social Security numbers (the use of which has unintentionally bolstered the Social Security trust fund with unclaimed tax money). Forged identification is also readily available via a thriving fake-ID industry, the by-product of a thriving underground economy that is hard to avoid.

Employers who wish to be sticklers may use E-Verify, an online document verification system provided by the federal government. But the program is purely voluntary - and not all employers wish to be sticklers.