Hiring Foreign Workers: Developments in Immigration and Discrimination Laws

This data illustrates that about 60 percent (59.2 percent) of immigrant workers are occupying relatively low-paying jobs as operators, laborers, or service workers. However, nearly 40 percent (39.8%) are occupying higher-paid professional and skilled jobs. This is consistent with the view that many highly educated and well-trained foreign nationals are coming to the United States to perform work in high-skill, high-paying jobs.

Yet, many people who are granted entry into the United States are coming for reasons other than their own individual jobs. According to the Department of Statistics within the INS, immigrant admissions by major categories from 1992 to 1996 were as follows:

Table 2 Immigration by Category 1992-1996

This table illustrates that the vast majority of immigrants come to the United States because they have family that already live here. For example, husbands who wish to bring their wives to the United States fall into this category. Nevertheless, a substantial portion of immigrants — 14.5 percent, or over 500,000 people — came to the United States between 1992 and 1996 under an employment-related visa. Furthermore, many who were admitted to the United States under some other form of visa are also permitted to and actually seek employment in the United States

In recent years, the largest percentage of legal immigration into the United States has emanated from Mexico. In 1997, there were 147,000 Mexicans who moved into the United States legally. This accounted for 18.4 percent of the total legal immigration. No other country accounts for more than 10 percent of legal immigrants. Most (67 percent) of the legal immigrants entering the United States in 1997 intended to live in just a few states: California, New York, Florida, Texas, New Jersey, or Illinois. Not surprisingly, many intended to live in large metropolitan areas such as New York City, Los Angeles, Miami, Chicago, and the Washington, D.C. area.

In addition to these lawful immigrants, there are many people who come to the United States illegally. However, immigration authorities have engaged in substantial efforts to stem the tide of illegal immigration. In 1997, the INS set a new record by deporting 111,000 illegal aliens from the United States. [FOOTNOTE 5]

However, since many illegal aliens come to the United States to find work, the INS has directed much of its enforcement effort towards employers. In 1997, the INS targeted over 5,000 employers suspected of accepting or using fraudulent documents or engaging in illegal smuggling of aliens. [FOOTNOTE 6]In 19,000 cases, the INS was involved in the actual removal of employees from the workplace. In addition, the INS and the Social Security Administration implemented a pilot project with 30 employers in the Chicago area, which was designed to facilitate the verification of employment authorization for employees regardless of their citizenship. The administrative hearing office of the INS closed 100 cases involving employer sanctions. Administrative Law Judges awarded $1,065,000 in fines against employers in 1997. [FOOTNOTE 7]

Because of this significant enforcement effort directed towards employers, it is imperative that firms employing aliens insure that their policies comply with applicable immigration laws. This has induced many employers to shy away from hiring aliens for fear of sanctions from immigration officials for minor or technical violations. However, employers are also prohibited from discriminating against applicants because of their race, nationality, or citizenship. Thus, in many cases employers must offer non-citizens equal employment opportunities. For these reasons employers need to understand the intricacies of both immigration laws and anti-discrimination laws. They need to walk a fine line between requiring appropriate documentation from non-citizens, without imposing unfair burdens on applicants based on their citizenship.

II. The Legal Framework for Immigration Law

A. Constitutional Provisions and Judicial Deference

The U.S. Constitution specifically grants Congress the power to regulate immigration by passing a “uniform Rule of Naturalization.” [FOOTNOTE 8]The U.S. Supreme Court has acknowledged this rule and other sources for the broad plenary power of the Congress to regulate immigration. The Court stated, “[O]ver no conceivable subject is the legislative power of Congress more complete.” [FOOTNOTE 9]As a result, the Court has granted extreme deference to Congress in passing immigration laws.

B. Statutory Provisions

The Immigration and Nationality Act of 1952 (INA) is the foundation for current U.S. immigration law. That statute compiled and codified several other immigration statutes into one consolidated statute. Significant amendments to this statute have occurred since then, with the most sweeping in 1990. The law provides that non-citizens coming into the United States fall into two categories — “nonimmigrants” and “immigrants.” Nonimmigrants are those individuals who are admitted for a limited time and often for a limited purpose. Immigrants are those who want to become permanent residents of the United States. After permanent residents live in the United States for a sufficient number of years, they can apply for citizenship. People who successfully complete the residency requirement and become U.S. citizens are called naturalized citizens.

The law provides for several categories of nonimmigrants and immigrants. To be admitted into the United States, individuals must meet the requirements of the applicable category. Once they do so, they are issued a “visa” which is the document that identifies their category and provides evidence of their eligibility to be in the United States. Violations of the conditions of a visa may result in expulsion from the United States.

Because so many individuals come to the United States for employment-related reasons, federal statutes make employers liable for compliance with immigration law requirements. Two such statutes — the Immigration Reform and Control Act of 1986 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 — contain devices used to enforce and control immigration policy.

IMMIGRATION REFORM AND CONTROL ACT OF 1986 (IRCA)

IRCA was established in order to control the increasing illegal alien population. It poses on the employer the burden of verifying employment status (verification), and it prohibits discrimination against citizens and legal aliens, defining the terms and conditions under which legal aliens are admitted to work. Employers are allowed to hire temporary agricultural workers after obtaining certification from the Secretary of Labor. To reduce the numbers of illegally employed aliens, IRCA requires employers in the United States to verify the identity and employment eligibility of all of their employees who were hired after November 6, 1989. [FOOTNOTE 11]In addition, IRCA provides sanctions for employers who knowingly hire or employ illegal aliens. [FOOTNOTE 12]Addressing concerns that the documentation requirements were being used to justify disparate treatment of applicants who appeared to be foreign born, the statute was amended on November 29, 1990, to prohibit employers from requiring more or different documents than those required to verify identity and employment eligibility. In addition, the amendments provided sanctions against the production or use of fraudulent documents. Employers comply with this Act by using a form known as the “I-9,” which contains instructions for both employers and employees. [FOOTNOTE 13]

Employers may obtain a free copy of a booklet that provides instructions for using the I-9 form. [FOOTNOTE 14]Additional information for employers can be obtained from the INS website. In general, the I-9 form uses a two-step analysis to verify identity and employment eligibility. Some individuals may have documents that verify both who they are and that they are authorized to work for the employer. Those documents are called “List A” documents. Examples are a U.S. Passport (issued to U.S. citizens) and an Alien Registration Card. Applicants without such documents must present one document which verifies their identity (a “List B” document) and another which verifies their eligibility to work in the United States (a “List C” document). List B documents include a driver’s license or a voter registration card. List C documents include a social security card. Thus, it was common for many U.S. citizens to show their employers both a driver’s license and a social security card when they were newly hired.

THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 (IIRIRA)

The Immigration Act of 1990 created civil penalties for the use of fraudulent documents in immigration matters. In 1996, Congress passed IIRIRA, which reduced the number of documents that are acceptable for completion of the I-9 form. The INS is in the process of promulgating an administrative rule that will implement these changes. However, until the new rule is finalized, the INS is operating under an interim rule. [FOOTNOTE 17]The interim rule provides that certain documents are no longer acceptable as List A Documents: the Certificate of U.S. Citizenship (INS Form N-560 or N-561), the Certificate of Naturalization (INS Form N-550 or N 570), the reentry permit (INS Form I327), and the Refugee Travel Document (INS Form I-571). In addition, the interim rule retains two documents on List A: (1) foreign passports with temporary evidence of permanent residence and (2) a foreign passport with a Form I-94, but only where the nonimmigrant is authorized to work for a specific employer.

In addition, IIRIRA [FOOTNOTE 16]removed birth certificates from the list of acceptable List C documents. However, the INS used its regulatory authority to temporarily retain the use of birth certificates until a final rule is promulgated.

Recognizing that employers may have relied on the existing regulations, the INS announced that it will limit prosecution of employers who commit certain violations of the interim rule. The preamble to the publication of the interim rule states:

This rule does not include a revised Form I-9. Employers and recruiters … are to continue to use the current version of the Form I-9 (edition 11/21/91) to complete the employment verification process until the Form I-9 is revised. As a result, the Service has determined in its prosecutorial discretion not to seek a civil money penalty, until further notice, for any violations based upon the changes made by this rule to the list of acceptable documents .� The Service will withhold enforcement of civil money penalties for violations associated with these changes and committed before the effective date of a final rule containing the revised form I-9, so that employers … will not be penalized if they accept documents that were previously acceptable but were removed from the list by this interim rule. [FOOTNOTE 18]