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Immigration Laws

Immigration and the employment of immigrant workers are controlled by a series of federal laws. In general, these laws are designed for two purposes: to require verification of the legal right to work within the United States and to prevent potential discrimination against immigrant workers who are legally allowed to work in the country. The two major laws in this area are the Immigration and Nationality Act of 1952 (as amended) and the Immigration Reform and Control Act of 1986. While immigration law is extremely complex, for our purposes in an introductory HR text, we will discuss only the basic employment provisions of these two laws. Immigration And Nationality Act Of 1952 (INA). The INA was designed to take a variety of different immigration laws and combine them into a single act. Before INA, a number of federal laws governed immigration, but they were not consistent and were not organized in one location under one authority. INA allows companies in the United States to employ immigrant workers in certain specialty occupations through the use of an H-1B visa. Because Congress foresaw the potential for companies to discriminate against all alien workers to avoid any accusation of hiring undocumented workers, INA also has a nondiscrimination requirement when dealing with alien workers who have the right to work in the United States. Immigration Reform And Control Act Of 1986 (IRCA). Under IRCA, employers may hire only individuals who are authorized to legally work in the United States. IRCA has a provision that prohibits employers from knowingly hiring undocumented workers, and it requires employers to verify each employee’s eligibility for employment. The employer is required to verify the identity and employment eligibility of anyone it hires, through the use of a form called the Employment Eligibility Verification Form (I-9). However, the act also provides employers complying “in good faith” with the requirements of IRCA with what is called an affirmative defense to inadvertently hiring an unauthorized alien. An affirmative defense means basically that if we made a legitimate and complete effort to verify a person’s legal status and it turns out that person provided false documents, or that we were tricked or lied to in some other way, we won’t be held liable for any potential fines that would have otherwise been assessed for hiring undocumented workers.