The Immigration Reform and Control Act (IRCA) was enacted in 1974 to provide assistance to the Immigration and Naturalization Service (INS) in identifying those persons who were in the United States illegally. In effect, the Immigration Reform and Control Act makes all employers, including institutions of higher learning, part of the INS enforcement process by denying employment to those persons who lack appropriate documentation and by requiring employers to maintain records of documentation for those persons hired. Basically, the Immigration Reform and Control Act makes it unlawful for a person to knowingly hire or recruit an unauthorized alien for work, or to refer such a person for a fee. It also prohibits hiring someone without complying with the Immigration Reform and Control Act documentation requirements (IRCA, § 1324a (1) (A) and B)).
The Homeland Security Act of 2002 transferred the functions of the INS to the Department of Homeland Security (DHS), with overall control vested in the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR). This arrangement has resulted in identical sets of regulations regarding employment verification requirements, one for INS/DHS and the other for EOIR/DOJ. In light of the many legal issues surrounding the immigration of students and employees, then, this entry focuses on the primary federal law on point, the Immigration Reform and Control Act.
The key item necessary in the verification process for new employee work authorization is the I-9 Employment Eligibility Verification Form that is available either in paper format from the Superintendent of Documents in Washington, D.C., or in electronic format from the Web site of U.S. Citizenship and Immigration Services (http://www.uscis.gov). The documentation is divided into three categories: documents that establish both identity and work authorization, those that establish identity only, and those that establish work authorization only.
Documents That Establish Identity and Work Authorization
The federal regulations identify the following documents as establishing both identity and work authorization:
(1) U.S. passport (unexpired or expired);
(2) Alien registration receipt card or permanent resident card, Form I-551;
(3) An unexpired foreign passport that contains a temporary I-551 stamp;
(4) An unexpired employment authorization document issued by the Immigration and Naturalization Service which contains a photograph, Form I-766, Form I-688, Form I-688A, or Form I-688B;
(5) In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, an unexpired foreign passport with an Arrival-Departure Record, Form I-94, bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, so long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form I-94.
The regulations further identify the following documents as establishing identity only:
(1) For individuals 16 years of age or older:
(i) A driver’s license or identification card containing a photograph, issued by a state (as defined in section 101(a)(36) of the Act) or an outlying possession of the United States (as defined by section 101(a) (29) of the Act). If the driver’s license or identification card does not contain a photograph, identifying information shall be included such as: name, date of birth, sex, height, color of eyes, and address;
(ii) School identification card with a photograph;
(iii) Voter’s registration card;
(iv) U.S. military card or draft record;
(v) Identification card issued by federal, state, or local government agencies or entities. If the identification card does not contain a photograph, identifying information shall be included such as: name, date of birth, sex, height, color of eyes, and address;
(vi) Military dependent’s identification card;
(vii) Native American tribal documents;
(viii) United States Coast Guard Merchant Mariner Card;
(ix) Driver’s license issued by a Canadian government authority.
(2) For individuals under age 18 who are unable to produce a document listed in paragraph (b)(1) (v)(B)(1) of this section, the following documents are acceptable to establish identity only:
(i) School record or report card;
(ii) Clinic doctor or hospital record;
(iii) Daycare or nursery school record.
(3) Minors under the age of 18 who are unable to produce one of the identity documents listed in paragraph (b)(1)(v)(B)(1) or (2) of this section are exempt from producing one of the enumerated identity documents if:
(i) The minor’s parent or legal guardian completes on the Form I-9 Section 1—“Employee Information and Verification” and in the space for the minor’s signature, the parent or legal guardian writes the words, “minor under age 18.”
(ii) The minor’s parent or legal guardian completes on the Form I-9 the “preparer/ translator certification.”
(iii) The employer or the recruiter or referrer for a fee writes in Section 2—“Employer Review and Verification” under List B in the space after the words “Document Identification #” the words, “minor under age 18.”
(4) Individuals with handicaps, who are unable to produce one of the identity documents listed in paragraph (b)(1)(v)(B)(1) or (2) of this section, who are being placed into employment by a nonprofit organization, association or as part of a rehabilitation program, may follow the procedures for establishing identity provided in this section for minors under the age of 18, substituting where appropriate, the term “special placement” for “minor under age 18,” and permitting, in addition to a parent or legal guardian, a representative from the nonprofit organization, association or rehabilitation program placing the individual into a position of employment, to fill out and sign in the appropriate section, the Form I-9. For purposes of this section the term individual with handicaps means any person who
(i) Has a physical or mental impairment which substantially limits one or more of such person’s major life activities,
(ii) Has a record of such impairment, or
(iii) Is regarded as having such impairment.
Finally, the regulations identify the following documents as establishing work authorization only: (1) A social security number card other than one which has printed on its face “not valid for employment purposes”; (2) A Certification of Birth Abroad issued by the Department of State, Form FS-545; (3) A Certification of Birth Abroad issued by the Department of State, Form DS-1350; (4) An original or certified copy of a birth certificate issued by a State, county, municipal authority or outlying possession of the United States bearing an official seal; (5) Native American tribal document; (6) United States Citizen Identification Card, INS Form I-197; (7) Identification card for use of resident citizen in the United States, INS Form I-179; (8) An unexpired employment authorization document issued by the Immigration and Naturalization Service.
This verification process must occur for every new employee who is hired.
The Immigration Reform and Control Act has special rules for determining the kinds of employment decisions that do not constitute new employment. Employees are considered to be involved in continuing employment where an individual
(1) takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer;
(2) is promoted, demoted, or gets a pay raise;
(3) is temporarily laid off for lack of work;
(4) is on strike or in a labor dispute;
(5) is reinstated after disciplinary suspension for wrongful termination found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement;
(6) transfers from one distinct unit of an employer to another distinct unit of the same employer (the employer may transfer the individual’s Form I-9 to the receiving unit);
(7) continues his or her employment with a related, successor, or reorganized employer, provided that the employer obtains and maintains from the previous employer records and Forms I-9 where applicable. For this purpose, a related, successor, or reorganized employer includes:
(i) The same employer at another location;
(ii) An employer who continues to employ some or all of a previous employer’s workforce in cases involving a corporate reorganization, merger, or sale of stock or assets;
(iii) An employer who continues to employ any employee of another employer’s workforce where both employers belong to the same multi-employer association and the employee continues to work in the same bargaining unit under the same collective bargaining agreement. For purposes of this subsection, any agent designated to complete and maintain the Form I-9 must record the employee’s date of hire and/or termination each time the employee is hired and/or terminated by an employer of the multi-employer association; or
(8) is engaged in seasonal employment.
At the same time, the Immigration Reform and Control Act imposes a number of requirements pertaining to the storage and inspection of documents requirement for employment. Employers must retain I-9 forms along with verification documents for at least three years or for one year after individuals are discharged, whichever is longer (IRCA, § 1324a(b)(3)). Moreover, the I-9 forms are subject to inspection by agents of INS or the Department of Labor upon no more than three days’ notice without their having to secure a subpoena or warrant. Civil penalties for failure to comply with the Immigration Reform and Control Act include progressive fines from a maximum of a $2,000 fine for a first-time offense for each unauthorized alien up to a maximum of a $10,000 fine for repeat employer offenders. Criminal penalties can include fines up to $3,000 and a six-month imprisonment for each violation.
The IRCA and Discrimination
It is worth noting that the Immigration Reform and Control Act prohibits discrimination based on national origin or citizenship status. To this end, employers of more than three employees are prohibited from discriminating in hiring or discharge of workers because of their national origin or because applicants are U.S. citizens or intend to become citizens. In interpreting this nondiscrimination policy, a federal trial court in Texas, in a case from K–12 education, rendered a judgment that should be of interest to officials at colleges and universities. In League of United Latin American Citizens v. Pasadena Independent School District (1987), in enjoining the enforcement of such a policy, the court was of the opinion that a school board’s policy of terminating the employment of undocumented aliens for the sole reason that they gave their employers false social security numbers constituted an unfair immigration-related employment practice under the IRCA.
The Immigration Reform and Control Act (IRCA) also addresses issues attendant to student reception of Title IV funds, also known as Pell Grants. In order to be eligible for Title IV funds, all students must declare, under penalty of perjury, whether they are U.S. citizens, and if they are not U.S. citizens, that they are in an immigrant status that does not render them ineligible for grants, loans, or work assistance under Title IV. The act mandates that officials in institutions of higher learning follow a three-step procedure:
First, officials must collect documents that verify the immigration status of individuals; these do not have to be the same documents that verify identity and work employability under the Immigration Reform and Control Act.
Second, where documentation is not immediately presented or, if presented, has not been verified, students must be afforded reasonable opportunities to submit evidence to institutional officials documenting their satisfactory immigration status, and until such a reasonable opportunity is provided, their eligibility for Title IV funds cannot be delayed, denied, reduced, or terminated. Third, if institutional officials received documentation that they deem satisfactory to constitute reasonable evidence of employment status, they must send photostatic copies to the INS for verification and, pending verification, students’ Title IV eligibility cannot be delayed, denied, reduced, or terminated.
If alien students have improperly received Title IV funds, educational institutions are protected from imposition of penalties by the U.S. secretary of education if their officials relied on INS verification of eligibility or were awaiting either student documentation or INS verification. In the case of guaranteed student loans, guarantees are not voided nor are payments nullified if college and university officials notify loan-making entities promptly when they learn of a student’s ineligibility.
Another issue relating to immigration and higher education is whether undocumented students can be granted residency status in order to qualify for in-state tuition at public colleges and universities. Although Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 prohibits states from “providing a postsecondary education to an alien not lawfully present unless any citizen or national is eligible for such benefit,” the states have interpreted this in various ways, with some states seeking to prevent students who are undocumented immigrants from receiving state tuition benefits and others granting them access to in-state tuition rates. Congress is currently considering legislation that would allow states to grant in-state tuition and financial aid to undocumented students. This bill, the Development, Relief, and Education for Alien Minors (S. 729 and H.R. 1751, known as the DREAM Act), would repeal Section 505 of the IIRIRA and make undocumented students eligible for some forms of federal aid.
Ralph D. Mawdsley
Code of Federal Regulations, 8 C.F.R. §§ 274.1 et seq. (IRCA employment verification requirements).
Homeland Security Act, 6 U.S.C. §§ 101 et seq.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208.
Immigration Reform and Control Act, 8 U.S.C. §§ 1324, 1324(a).
League of United Latin American Citizens v. Pasadena Independent School District, 662 F. Supp. 443 (S.D. Tex. 1987).
Title IV Basic Educational Opportunity Grants, 20 U.S.C. §§ 1070–1091.