13 Chap. L. Rev. 615 (No PDF)
Chapman Law Review
Drug War Madness: Policies, Borders & Corruption
CLOSING THE BACK DOOR ON ILLEGAL IMMIGRATION: OVER TWO DECADES OF INEFFECTIVE PROVISIONS WHILE SOLUTIONS ARE JUST A FEW WORDS AWAY
Copyright (c) 2010 Chapman Law Review; Phi Mai Nguyen
Americans have a history of disdaining both documented and undocumented immigrants, who are deemed to have created a cultural threat and economic burden for the United States. Indeed, “[d]eliberate race-based exclusion has existed in America since its inception.” This negative mentality has translated into nearly a century of hostile immigration policies. Congress first responded to the anti-immigrant sentiment with the 1882 Immigration Act, which defined U.S. immigration policy for the first time. Within the same year, Congress passed the first Chinese exclusion law, which created an annual quota on the number of Chinese immigrants allowed into the United States. Subsequently, in 1917, Congress passed another Immigration Act that not only restated all the exclusions previously legislated, but also barred most Asians and Pacific Islanders from entering the country. Then came, among others, the 1921 and 1924 Quota Limit Laws, the 1940 Alien Registration Act, and the Bracero Program, all of which aimed at restricting immigrants to the United States.
As the nation expanded, U.S. immigration policy gradually became more liberal and evolved to accept more documented immigrants while placing tougher restrictions on those who were undocumented. The highlight of this trend was the Immigration Reform and Control Act (IRCA) of 1986, which attacked the illegal immigration problem from a new front: the demand side. The IRCA makes it unlawful for employers “to hire, or to recruit or refer for a fee . . . an alien knowing the alien is an unauthorized alien” and it imposes sanctions on employers who knowingly do so. Since opportunities for employment in the United States have by far been the primary motivation for immigrants to risk their lives to enter this country without proper documentation, Congress believed that eliminating employment opportunities–the demand side–would effectively deter undocumented immigrants–the supply side–from entering this country. Under the IRCA, employers are required to verify their workers’ eligibility for employment, and a violation of this requirement results in fines and sanctions. The IRCA holds employers criminally and civilly liable for hiring undocumented immigrants so long as they have knowledge of the legal status of their prospective employees. The IRCA sought to create a sweeping effect of eliminating undocumented immigrants; it purported to close the back door on illegal immigration while opening the front door to legal immigration.
However, to date, the IRCA is far from achieving its goals. Although it attempted to eliminate opportunities for illegal immigration, the IRCA has failed because, “[t]he inward flow of undocumented immigrants grew exponentially in the years following its passage.” It is estimated that there were approximately twelve million undocumented immigrants in the United States by the end of 2008; nearly four times the amount that existed when the IRCA was first enacted in 1986. As scholars have noted, “[the IRCA] has failed to achieve its goals . . . [the] IRCA has caused our nation more harm than good . . . [the] IRCA increased the flow of undocumented workers and created an underclass of workers that have no rights.” The IRCA’s employer sanction provisions created little adverse impact upon employers. It thus failed to discourage them from hiring undocumented immigrants, who were already eager and willing to work, despite the lack of protection from U.S. laws. Furthermore, the courts have indirectly encouraged illegal immigration by conveniently refusing a number of remedies for unauthorized workers. As a result, employers face few, if any, repercussions should things go wrong during their employment relationship with undocumented immigrants. Finally, the IRCA’s knowledge standard is quite unavailing, as employers can easily produce evidence showing their lack of knowledge regarding the unauthorized status of their prospective employees, simply based on the reasonable validity of documents presented to them.
This Comment advocates for an amendment to the IRCA that would hold employers strictly liable for employing undocumented immigrants. Employers should not be afforded an opportunity to absolve themselves from penalties and sanctions under the IRCA simply because of their purported lack of knowledge. The moment they hire an undocumented immigrant, for whatever reason, they have violated the IRCA and should be severely penalized. Employers, however, will not be left stranded with such a high standard. A number of employment verification tools are available to them, often at no cost. To effectively avoid the proposed strict liability, employers would be forced to utilize those effective mechanisms to detect the undocumented status of prospective employees instead of solely relying on the face value of the documents that are provided by those employees. Adopting a strict liability standard would inevitably lead to an increased penalty for employers should they violate the IRCA.
This Comment is composed of three parts. Part I provides the background surrounding undocumented immigrants–the history of the IRCA and its effectiveness, or lack thereof, in the battle against illegal immigration. This section will also acknowledge the importance of “E-Verify,” one of the most effective employment verification tools. Part II provides an in-depth analysis as to why the IRCA has failed to reduce illegal immigration. This analysis suggests that (1) the employer sanction provisions of the IRCA are entirely ineffective, (2) the courts’ interpretations of the IRCA and their controversial decisions that withhold employee remedies have in fact encouraged illegal immigration, (3) undocumented immigrants will continue to work despite the lack of legal protection within the United States, and, most importantly, (4) the knowledge standard of the IRCA is unavailing. Based on this analysis, Part III provides a viable solution–amending the knowledge standard of the IRCA to a stricter standard that holds employers strictly liable for the employment of undocumented immigrants.
I. Illegal Immigration Before and After the IRCA
Since its colonization, the United States has welcomed millions of immigrants. After over three hundred years, people still travel to this country to seek employment and better opportunities for their families. Because immigration is an inherent component of this country, it is important to consider the existing attitudes of American citizens toward illegal immigration in order to at least partially explain why the IRCA was enacted, and also why it has failed.
Many Americans are dissatisfied with undocumented immigrants because they view immigrants as people who take jobs away from U.S. citizens, and who create financial and social burdens for American society. Economists and commentators have called for comprehensive immigration reform to reduce, if not eliminate, illegal immigration, the persistence of which is considered to be the root of major problems in the United States. Despite such pressure, undocumented immigrants continue to play a vital role in the economy, as well as in the development and success of this country. Together with documented immigrants, undocumented immigrants have long been an indispensable part of the U.S. labor force. Their presence compensates for shortfalls in a number of industries and occupations. Because of this demand for workers, undocumented immigrants continue to find employment in the U.S. labor force.
Despite such positive statistics, American hostility toward undocumented immigrants is not entirely unfounded. Undocumented workers represent one out of every twenty workers in the U.S. labor force. In addition, they tend to be under the age of forty and therefore are less likely to be disabled or retired, indicating that they will remain in the unauthorized workforce for quite some time, and thus perpetuate the unauthorized employment problem within the United States, which interferes with the job market of otherwise authorized workers. In addition, by virtue of their presence, undocumented workers cost Americans millions of dollars every year in added costs to public education, health care, welfare services, and the criminal justice system. As such, they are viewed as a burden on citizen taxpayers and a drain on state and local government resources. Indeed, in a 1995 report, the Government Accountability Office (GAO) examined three national studies of the benefits and costs associated with undocumented aliens and concluded that the costs outweighed the benefits to the U.S. economy. Such a controversial conclusion is supported by the number of experts that the GAO consulted while gathering information for the report, thus further stoking the sentiment that, as one U.S. Senator opined, “Illegal immigration is wrong–plain and simple.”
Despite the existence of the IRCA, the number of undocumented aliens continues to rise. The IRCA has been the subject of endless debates and criticisms over the past two decades. Many blame the employer sanctions provisions for the failure of the IRCA. Others urge the U.S. judicial system to use reason and fairness to guide the resolution of the current immigration situation. Still others advocate for complete immigration reform. While these are valuable suggestions to solve the problem of illegal immigration, they overlook the roles of perhaps the most important soldiers in the battle against illegal immigration–U.S. employers–who are entirely capable of meeting the most desirable need of undocumented aliens: employment. Giving undocumented workers opportunities to make a living in the United States directly encourages them to enter the country unlawfully and remain undocumented once they find a way to earn a living. This activity fosters more illegal immigration, despite the nation’s outcry for stricter regulation. Therefore, U.S. employers should be the focal point of the battle against illegal immigration.
A. Undocumented Aliens: Who Are They and Why Are They Here?
The number of undocumented immigrants in the United States amounted to nearly twelve million at the end of 2008. Over time, four main categories of undocumented immigrants have arisen. The first group includes those who come into the country without proper paperwork or authorization, typically crossing the southern border that the United States shares with Mexico. The second includes those who enter the country with valid paperwork but stay beyond the time allowed on their visas–these are also called “the visa overstayers.” The third category includes those who enter the country with fraudulent documents. The final category is comprised of legal permanent residents who commit crimes that render them deportable.
Undocumented immigrants choose the United States as their destination country for a number of reasons, many of which pertain to the socio-economic conditions of the source countries. Economic hardship or political instability often induces immigrants to escape their home countries despite the risks associated with becoming undocumented in the United States. For those who are eligible to obtain immigrant visas, the wait times are so long that they significantly discourage many eligible aliens. In addition to significant backlogs on application processing, the United States has statutory ceilings that limit the number of immigrant visas issued each year, prompting aliens to risk residing with their family members without legal status while waiting for their petitions to be processed. Most undocumented immigrants, however, do not have the luxury of waiting for such a long period of time to obtain immigrant visas because they do not have family members or employers whose sponsorship may permit them to apply for immigrant visas.
The most significant enticement to immigrate without proper documentation, however, is the possibility of employment, “which like a ‘magnet’ pulls illegal immigrants toward the United States.” Undocumented immigrants are motivated by the “prosperity-fueled job opportunities in the United States in contrast to limited or nonexistent job opportunities in the sending countries.” As such, they are willing to work for substantially less than what lawfully present U.S. workers would require, although in many situations that is still substantially more than what they would otherwise have earned at home.
Surprisingly, protection of U.S. law is not the key motivation of undocumented immigrants. In fact, they are barred from almost all governmental benefits, including food stamps, Medicaid, federal housing programs, and social security income, to name a few, as a consequence of residing in the United States without proper documentation.
B. The Immigration Reform and Control Act of 1986: History and Development
Under pressure for immigration reform, Congress enacted the IRCA, which significantly altered the then existing immigration policy and programs. The IRCA purported to reduce illegal immigration by preventing undocumented immigrants from being lawfully employed in the United States. The IRCA’s employer sanction provisions, which sought to penalize U.S. employers who knowingly hired unauthorized workers, were notably the most controversial part of the Act.
i. The Origins of the IRCA
In 1942, faced with severe labor shortages in agriculture during World War II, a temporary-worker program was established to allow employers to hire workers from Mexico, on a temporary basis, for up to nine months per year. Congress subsequently enacted the Agricultural Act of 1949, which essentially expanded the previous temporary-worker program to the Bracero Program, which lasted until 1964. During this period, more than five million Mexicans came to the United States as temporary workers. The Bracero Program workers were paid low wages, enabling their employers to make much larger profits. When the program was officially ended in 1964, employers were left with a few options–moving their operation overseas, replacing human labor with machines, hiring undocumented immigrants, or simply going out of business. Among these options, hiring undocumented immigrants appeared to be the least expensive solution, since hundreds of thousands of immigrants who continued to stay or came to the United States without authorization were in dire need of jobs. From the moment the Bracero Program ended in 1964 until the enactment of the IRCA in 1986, hiring undocumented immigrants was common practice. Moreover, although it was illegal for individuals to come to the United States without authorization, it was not illegal for employers to hire them. This led to a dramatic influx of illegal immigrants in the 1970s. At the conclusion of the Bracero Program, employers not only hired Mexican undocumented immigrants that were left unemployed from the program, but also other individuals in the undocumented immigrant pool.
Throughout the 1970s, the number of illegal immigrants continued to rise, and by the 1980s the United States harbored millions of undocumented immigrants. Such an alarming number of undocumented aliens prompted Congress to find a solution, and the IRCA was born as a result. The IRCA makes it unlawful for employers “to hire, or to recruit or refer for a fee . . . an alien knowing the alien is an unauthorized alien,” and it imposes sanctions on employers who knowingly violate this provision.
ii. Employer Sanction Provisions
Under the sanction provisions of the IRCA, employers who knowingly hire, recruit, or refer unauthorized aliens are subject to penalties ranging from $250-$10,000 per employed alien. It also imposes criminal penalties on those who engage in “pattern or practice violations.” These are typically fines of not more than $3,000 per alien, or imprisonment of not more than six months, or both. These provisions seek to prevent two types of proscribed activities by employers. First, they prohibit employers from hiring or continuing to employ an individual if the employer knows the individual is not authorized to obtain employment in the United States. Second, they provide for criminal penalties if the employer engages in a more egregious “pattern or practice” of hiring or continuing to employ such aliens. Criminal penalties were designed to discourage employers from continuing unlawful hiring practice with the mentality that they could simply pay for the civil fines as a regular cost of “doing business.”
C. The Landscape of Illegal Immigration in the Post-IRCA Era
Immediately after the passage of the IRCA in 1986, the number of undocumented immigrants dropped significantly, though artificially, from 1986 to 1989. Prospective undocu-mented immigrants employed a wait-and-see approach to determine whether the United States was serious about enforcing its policies. When it became apparent that the United States was “not serious about enforcement and that the system could be easily evaded through the use of inexpensive phony documents,” undocumented immigration began to increase again. The number of undocumented immigrants, 3.2 million prior to the enactment of the IRCA, nearly doubled in the next ten years, and it continued to spiral upward to reach approximately twelve million at the end of 2008. Both Congress and President George W. Bush proposed new programs to set forth certain measures, since then-current immigration programs had failed to deliver the intended result. Congress began to spend more money to strengthen the border, only to realize that the demand for human smugglers had dramatically increased.
In 2004, President Bush proposed a temporary worker program in an attempt to reform and mend existing American immigration policy. This proposed new program purported to expand the guest worker visa and provide new guidelines for U.S. employers in hiring foreign workers. The program was to operate like the Bracero Program to meet labor shortages. As such, jobs would only be open to foreign workers when no U.S. worker was available. Like the Braceros, foreign workers participating in guest worker programs would be dependent upon their employers to maintain their visas.
However, Bush’s temporary worker program was only a temporary solution. Among other things, it did not provide incentives for foreign workers to obtain temporary visas, and it provided no wage or labor protections. Furthermore, at the conclusion of their visa durations, workers would still be required to return to their home countries, as the proposed program did not offer an amnesty provision or priority for permanent residency processing. In effect, the proposed program would likely have had little, if any, influence on the number of undocumented immigrants entering the country because it was incapable of meeting the demands of the agricultural industry in America and was not comprehensive enough to satisfy the employment needs of immigrants.
Since the passage of the IRCA, employers must verify that every new-hire, citizen and noncitizen alike, is authorized to be employed in the United States. Some employers must collect employees’ documents based on the guidelines provided in the Employment Eligibility Verification Form I-9 from the U.S. Citizenship and Immigration Services (USCIS) (one of the successors to the former Immigration and Naturalization Service (INS)). The IRCA requires employers to verify documents submitted by prospective employees, and the risk of civil and criminal sanctions as provided in the IRCA urges employers to adopt measures to ensure the authenticity of those documents. To reduce fraudulent documents designed to evade the process of employment verification, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Initially, the IIRIRA established three pilot programs: the basic pilot program, the citizen attestation pilot program, and the machine-readable document pilot program. Today, only the basic pilot program, commonly known as “E-Verify,” is still in existence.
E-Verify is an online system operated by both the Department of Homeland Security (“DHS”) and the Social Security Administration (“SSA”). It facilitates the process of employment eligibility verification by allowing employers to enter information from an employee’s I-9 form into an Internet-based government database within three working days of hiring. Such information is then crosschecked against the databases of the DHS and the SSA, and E-Verify immediately gives a tentative confirmation, or non-confirmation, of employment eligibility. Tentative non-confirmation is the basis for further investigations by the government and a final decree is given to the employer within ten business days, thus allowing employers to know the eligibility of prospective employees within a very short amount of time. E-Verify is currently fully effective and available in all fifty states and some U.S. territories.
The use of E-Verify has become increasingly popular. Although Congress makes the use of E-Verify optional, as of August 2010, fourteen out of fifty states, pioneered by Arizona, have mandated the use of E-Verify by all or some employers. In addition, Executive Order 12989, as amended by President George W. Bush in 2008, mandated the use of E-Verify for all employees working on any federal contracts and required that all federal contractors and subcontractors begin using E-Verify starting September 8, 2009. As of January 2010, more than 180,000 employers were enrolled in the program, thus demonstrating its effectiveness in assisting employers in screening out prospective employees who are unauthorized to work. E-Verify, like most other electronic databases, has produced occasional “false negatives”–those who appear ineligible to work but are in fact fully authorized to work–or “false positives”–those who appear to be eligible but are in fact not authorized to work. However, since the USCIS has spent the last twelve years cleaning, revising, and perfecting the database, it may be the best system currently in use for employment verification.
The increasing ease and popularity of the E-Verify system has an important implication: employers now have the necessary tool to verify the legal status of their workers and thus have “no excuse” for hiring undocumented immigrants. E-Verify assists employers in two important ways: it reduces the burden on employers for immigration enforcement and it aids them in distinguishing between counterfeit and legitimate documents offered by prospective employees. It is free to all employers at the expense of Congress, which spent nearly $100 million on the program. Although the use of this system is optional, employers are adequately equipped with an important and effective tool to preclude the hiring of undocumented immigrants, and therefore should use E-Verify at all possible times.
II. The IRCA Has Progressively Encouraged Illegal Immigration
Like the issue it seeks to resolve–illegal immigration–the IRCA has been the topic of heated debate since its inception. Statistics have proven that the IRCA is not a successful strategy to decrease, let alone eliminate, illegal immigration. Countless factors have contributed to this failure. Experts have long exhausted the topic of employer sanctions and their diminished role in deterring illegal immigration. The failures of employer sanctions have paved the way for increased employment opportunities for undocumented immigrants, which directly explains why they continue to make this country their second home, despite living outside the protection of U.S. laws. While the battle against illegal immigration is not yet successful, courts have given a helping hand to employers who have violated the IRCA through a number of irresponsible decisions that send a dangerous message to employers–the “illegal treatment of undocumented workers will go virtually unpunished.” Furthermore, embedded within the IRCA is a loosely-drafted knowledge standard which holds employers liable only if, they know of their employee’s undocumented status. Knowledge, however, is quite a subjective standard, and employers can satisfy it with certain internal control procedures, however ineffective they may be. All of these loopholes enable illegal immigration to escalate and leave the IRCA outdated and highly criticized.
A. Employer Sanctions Provisions Do Not Effectively Deter the Practice of Hiring Undocumented Workers
The effectiveness of the sanction provisions in the IRCA has been seriously questioned. In fact, ten years after the IRCA was first enacted, government agencies have asserted that the employer sanctions provided in the IRCA have failed to achieve their goals. While the provisions were created to discourage the practice of hiring undocumented immigrants, they instead operated to encourage substantial discrimination. There was evidence that employers were less likely to hire “foreign-appearing” or “foreign-sounding” individuals who were otherwise fully qualified for the jobs available. Although there were provisions that allowed the possible repeal of employer sanctions in the case of widespread discrimination, the sanctions have not been repealed.
Minimal civil penalties have not deterred employers from hiring illegal immigrants. Because each undocumented worker hired only costs an employer from $250-$10,000 in fines or penalties, underpaying these individuals during the course of their employment exceeds any expenses employers could incur from sanctions should they be caught. In addition, employers have another means of getting around the sanctions provision–changing their hiring methods. There is growing evidence that employers use subcontractors, or recruiting agents. By doing so, employers avoid the requirements of the IRCA because subcontractors and their workers are not technically employees of the employer. Employers, therefore, do not have to bear the burden of employment verification, and take the employees as eligible to work so long as their subcontractors vouch for their valid employment authorization. Through these methods, employers can absolve themselves from any potential liability and conveniently shift the blame to their subcontractors, even if the workers happen to be undocumented immigrants.
In addition to its civil sanctions, the IRCA criminal sanction provision aims at preventing employers from engaging in a pattern of hiring undocumented workers. The criminal sanction provision provides that employers are subject to imprisonment for “not more than six months” and a fine of up to $3,000 per employed alien. On its face, the criminal liability provision seems to preclude employers from treating civil penalties as a cost of “doing business,” or using recruiting agencies to absolve their own liabilities. Nevertheless, employers who engage in the pattern of hiring undocumented workers have recognized that the “knowledge” requirement in the IRCA is subject to judicial interpretation. As such, some employers have chosen to take some calculated risks and continue to hire undocumented workers because the financial benefits of doing so substantially outweigh the risks of getting caught or being forced to pay civil or criminal penalties under the IRCA.
As a result, the struggle with illegal immigration continues. As the 1990 GAO report indicated, employer sanctions have led to widespread discrimination, and it is disputed whether they actually met the goal of decreasing illegal immigration. Some studies show that, despite the initial result of decreased illegal immigration, employer sanctions under the IRCA fail to provide a long-term solution. Sanctions have not deterred employers from hiring undocumented workers. This is demonstrated by the progressively increasing population of undocumented immigrants reported by the Pew Hispanic Center after the passage of the IRCA in 1986.
B. The Lack of Protection of U.S. Laws Does Not Deter Undocumented Immigrants from Seeking Employment
The legislative history of the IRCA indicates that Congress believed employment to be the main factor that draws undocumented aliens to the United States. Indeed, undocumented immigrants come to the United States in the hope of obtaining jobs, not for protection under U.S. labor laws. In doing so, they are willing to work at below-market wage rates as long as they are employed. The harsh working conditions offered by U.S. employers, despite being illegal per American standards, are quite acceptable to those who have risked their own lives to come to this country in search of a better future. After all, working in harsh and unsafe conditions is much better for many than losing lives in political unrest or living in poverty in their home countries.
As members of the “secondary labor market,” undocumented workers “gravitate toward jobs involving irregular employment, low wages, and poor working conditions,” all of which U.S. employees either refuse to tolerate without substantial warranty of safety. Undocumented immigrants have worked for brutally long hours at wages below the legal limit, with high rates of injuries and deaths. In addition, these individuals often do not report such harsh working conditions for fear of deportation. Horror stories about the mistreatment of undocumented workers in the workplace are not new to the public. Out of the one hundred eleven people who died on the job in New York City in 2000, seventy-four were immigrant workers. Chinese undocumented immigrants, for example, are forced to work at least one hundred hours per week in the New York garment district.
Undocumented workers’ willingness to work under harsh conditions and for less than adequate compensation encourages employers to hire these individuals for unskilled positions. Essentially, these employers and their unauthorized employees have an interlocking relationship from which mutual benefits derive. The employers can lower the workers’ wages, and workers in turn can make a living while remaining in the United States without proper documentation.
Numerous organizations have advocated for the rights of undocumented immigrant workers. The Asian American Legal Defense and Education Fund, for example, promotes the rights of Asian American immigrants. It has noted that “‘[e]mployer sanctions have undercut working conditions for all American workers by creating an underclass of undocumented workers who have no rights and are forced to work under slave-like conditions, for pay that no American worker can survive on.”’
C. Withholding Employees’ Remedies Does Not Solve, but Rather Encourages, Illegal Immigration
Despite the passage of the IRCA, undocumented immigrants, once employed, are still recognized as “employees” under the National Labor Relations Act (NLRA) and Fair Labor Standards Act (FLSA). Although Congress could have excluded undocumented immigrants from NLRA and FLSA protection, it did not do so according to the plain language of the IRCA. In fact, the legislative history of the IRCA indicates a strong Congressional intent to preserve protection for undocumented immigrants as “employees” under the NLRA and FLSA. Court decisions in the years after the passage of the IRCA have reflected such an understanding. In Patel v. Quality Inn South, the Eleventh Circuit concluded that the word “employee” should be construed broadly to include all workers not specifically exempted. The court reasoned that the provisions of the FLSA allowed employees to bring an action against their employer to recover any unpaid wages and overtime, where the term “employee” means “‘any individual employed by an employer,”’ which includes undocumented immigrant employees. The court further asserted that this interpretation went hand in hand with the IRCA because the IRCA was not intended to limit the rights of undocumented aliens under the FLSA. Undocumented aliens enter the United States without proper documentation to seek employment at any wage, not protection of the U.S labor laws. Allowing these individuals to seek appropriate remedies from employers’ wrongdoing would discourage employers from hiring undocumented immigrants with the intent of exploiting them. The Patel decision was, therefore, consistent with Congressional intent.
Nevertheless, the U.S. Supreme Court unjustifiably decided to depart from Congressional intent. The Court, in a five-to-four decision in Hoffman Plastic Compounds v. National Labor Relations Board, concluded that whenever there is a potential conflict between the remedies provided in the NLRA and federal immigration policy, such as the IRCA, the NLRA may be required to yield. In Hoffman, Jose Castro was an undocumented immigrant who presented false documents to obtain employment with Hoffman, a manufacturer of custom-formulated chemical compounds. During the course of his employment, Castro supported a union-organizing campaign on his employer’s premises and was subsequently laid off due to such involvement. The National Labor Relations Board found that Hoffman violated the NLRA by laying-off Castro to rid itself of known union supporters and ordered the company to, among other things, offer backpay to the employee. The U.S. Supreme Court reversed this order and held that an undocumented employee could not claim backpay under the NLRA. The Court reasoned that, because granting undocumented immigrants the right to backpay as a remedy under the NLRA would essentially encourage violation of the IRCA, providing such an award “to illegal aliens runs counter to policies underlying IRCA, policies the [National Labor Relations] Board has no authority to enforce or administer.”
The Hoffman Court based its conclusion on the premise that the employee could not lawfully have earned those wages because he was not authorized to work in the United States in the first place. This premise is problematic. The Court ignored the simple fact that it takes two to create an employment relationship. Castro could not have obtained employment had it not been for Hoffman’s acceptance of his documentation. Had Hoffman performed its due diligence by ensuring the legitimacy of the documentation, it would have discovered the undocumented status of Castro. If an employer does not use a verification device, like E-Verify, the employer is equally culpable for the employment of an undocumented worker. The Court conveniently ignored the employer’s participation in the unlawful hiring of Castro and made a one-sided, pro-employer conclusion that awarding backpay ran counter to the policies of the IRCA. In reality, withholding backpay condones illegal immigration because opportunistic employers like Hoffman recognize the benefits of hiring undocumented immigrants, and will capitalize on such illegitimate economic advantages that result from their unlawful conduct.
Since Hoffman was decided in 2002, lower courts have been confused about the application of the IRCA and to what extent it should overrule other federal statutes, such as the NLRA. Some courts have interpreted Hoffman narrowly and only applied its rationale to cases of disputed backpay under the NLRA. Others have interpreted Hoffman broadly as a blanket approval for denying other remedies, not just backpay, to undocumented workers. Such a situation is entirely contrary to the congressional intent that was explicitly articulated in the House Report during the consideration and passage of the IRCA:
It is not the intention of the Committee that . . . the [IRCA] . . . be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by existing law. In particular, the employer sanctions provisions are not inten[d]ed [sic] to limit in any way the scope of the term ‘employee’ in . . . [the NLRA].
The Hoffman Court’s failure to provide remedies for undocumented workers encourages employers to continue their current practice of hiring undocumented workers, despite the risk of violating the IRCA. Decisions like Hoffman “enable and validate the perpetuation of an exploitable subclass of workers.” Instead of punishing employers who routinely offer employment to undocumented immigrants, courts have shifted the punishment to undocumented workers. Since the IRCA sanctions have been proven to be ineffective, and few, if any, remedies are afforded for undocumented alien workers, employers continue to benefit from the practice of hiring, underpaying, and refusing to reinstate backpay for these individuals. Hoffman essentially signals to employers that they can continue their practices, which effectively condones illegal immigration.
D. The IRCA’s Knowledge Standard Is Unavailing
The IRCA provides that employers commit unlawful employment of unauthorized aliens when they hire, or continue to employ, an alien “knowing the alien is an unauthorized alien.” In addition, the government bears the burden of proving that the employer “knowingly employed an unauthorized alien.” The plain language of the statute makes it clear that, absent the element of knowledge, no violation can be found. Nevertheless, prior to the amendment of the Code of Federal Regulations in 2007, neither the final version of the IRCA nor its corresponding regulations contained a definition of the word “knowingly.” Consequently, from 1986 to 2007, while the government carried an enormous burden of proof, employers took the liberty of manipulating the term “knowingly” to their advantage. Courts have expressed concern that the knowledge requirement of the IRCA is vague and confusing, and have pointed out the absence of any useful guidance in legislative history.
Absent useful guidance and definitions for the terms “knowingly” and “knowledge,” commentators have restlessly sought to apply the knowledge standard. Some argue that “knowingly” requires employers to have “actual” knowledge of an alien’s unauthorized status. Others, including the Ninth Circuit in Mester Mfg. Co. v. I.N.S., have adopted the constructive knowledge standard, which was later adopted in the Code of Federal Regulations. While the constructive knowledge standard seems to be the predominant view, commentators have criticized it, stating that “[c]onstructive knowledge is not knowledge.” Even the “reckless and wanton disregard” standard seems to be too loose because it only imposes on employers a duty to investigate that which a reasonable person would investigate, and absolves them from liability when employers act in a non-reckless manner. Whether it is actual knowledge, constructive knowledge, or reckless disregard, the standard is still too loose to effectively deter illegal immigration because it creates many loopholes for employers to freely employ unauthorized workers as long as the government cannot prove a guilty intent. This partly explains why there has been so much litigation surrounding employers’ knowledge since the IRCA went into effect in 1986, while leaving the battle against illegal immigration unsuccessful. The next section will provide a practical and viable solution to ensure that employers think twice before making a hiring decision.
III. Employers Should Take a More Proactive Approach in the Battle Against Illegal Immigration
Although the IRCA created employer sanctions to hold employers responsible for making a preliminary determination of an employee’s legal status before hiring, there is overwhelming evidence that employer sanctions have done little to deter employers from hiring undocumented immigrants. So long as employers can show their lack of knowledge of an employee’s undocumented status, they are effectively absolved from liability. The knowledge standard is too vague to provide adequate guidelines for courts and law enforcement to impose sanctions on employers. Because decreasing employment opportunities for undocumented immigrants is, by far, the most practical way of discouraging illegal immigration, employers must be held to a strict liability standard.
Since employers now have everything they need to prevent the unlawful practice of hiring undocumented immigrants, and undocumented immigrants have few, if any, available remedies should things go wrong during the course of their employment, employers should carry the burden of ensuring that none of their employees are undocumented immigrants. Congress should amend the IRCA to impose sanctions on employers regardless of their actual knowledge, constructive knowledge, or reckless disregard of their employees’ unauthorized status. The current relevant provision of the IRCA states, “It is unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” Congress should eliminate the term “knowing” in section 1324a and revise the statute as follows:
It is unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an unauthorized alien regardless of the person or entity’s knowledge that the alien is an unauthorized alien.
This proposed amendment essentially imposes strict liability on employers and requires them to take charge of their hiring processes by utilizing all the verification tools available to them to prevent the hiring of undocumented immigrants.
At common law, strict liability makes people liable for their actions regardless of fault or intent. The strict liability standard is not overly rigid. Employers are still afforded plenty of reasonable mechanisms to detect an unauthorized worker. The Ninth Circuit has provided that the “inability to speak English is a factor, among others, which may be considered in determining [an employers’] knowledge that a person is in the United States illegally.” While employers often raise the objection that “it is unreasonable to expect businesspeople to distinguish between fake and real driver’s licenses and Social Security cards,” there is nothing unreasonable about it. Although employers may be able to rely on the facially reasonable validity of prospective employees’ documents, they are not obligated to do so. In fact, they should not rely solely on the documents presented by prospective employees in making hiring decisions precisely because there is always the possibility of human error in addition to fraud on the part of the prospective employees. With free access to E-Verify, a highly efficient system that grants employers instant access to determine the legal status of prospective employees, employers are equipped with an adequate tool to screen out unauthorized workers. E-Verify will help to ensure that the information provided in such documents is reliable and that a prospective employee is eligible to work in the United States Even if workers intentionally lie or present counterfeit documents to obtain employment, E-Verify will coordinate with both the Department of Homeland Security and the Social Security Administration to assist employers in detecting fraud.
After all, if employers find that hiring an undocumented employee elicits severe consequences, they will be discouraged from doing so. Strict liability is the only solution that will close the loopholes in the IRCA and ensure that employers seriously comply with the employment verification requirements. Mandatory use of E-Verify is not necessary at this point. Once employers recognize how important E-Verify is to avoid strict liability, it will be more widely used on a voluntary basis.
This Comment has examined the most important reason why the IRCA has failed to achieve its goals–the knowledge standard is too loose to discourage violation–and has provided an exhaustive analysis as to why a strict liability standard will work much better in deterring the hiring of undocumented immigrants, which will in turn reduce illegal immigration. Strict liability requires employers to adhere to a higher standard and penalizes them for any incidents of hiring undocumented immigrants without regard to knowledge or fault. The IRCA, if amended as proposed, is capable of putting an end to many of the circular debates about illegal immigration.
If employment opportunities are the single greatest factor in influencing the number of undocumented immigrants in this country, the lack thereof will discourage millions of these workers from entering the United States unlawfully. As legislators have hypothesized, an effective way to reduce illegal immigration would be to eliminate one of the “pull” factors–job opportunities. If newly arrived undocumented immigrants realize that they cannot find employment, they will eventually inform others in their countries of origin, who will then be inclined not to come to the United States illegally. As such, implementing a strict liability standard where employers are penalized for hiring undocumented immigrants without regard to knowledge will heighten the level of scrutiny and will certainly decrease illegal immigration in the long run.
[f]or American employers, Mexican immigration plays a critical role in efforts to maintain a sufficiently large pool of workers in part because of the close match between the needs of employers and the job readiness of Mexican immigrant workers, especially in ‘essential worker’ categories which are considered both unskilled and semi-skilled workers.
Rob Paral, Mexican Immigrant Workers and the U.S. Economy: An Increasingly Vital Role, 1 Immigr. Pol’y Focus 1, 5-6 (2002), available at http://www.americanimmigrationcouncil.org/sites/default/files/docs/Mex%20Imm%CC20Workers%CC20&%CC20US%C̱̈onomy.pdf.
 United States passport;  resident alien card, alien registration card, or other document designated by the Attorney General… social security account number card;  other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for the purposes of this section[;]… driver’s license or similar document issued for the purpose of identification by a State, if it contains a photograph of the individual[; and]… in the case of individuals under 16 years of age…documentation of personal identity of such other type as the Attorney General finds, by regulation, provides a reliable means of identification.
8 U.S.C. §1324a(b)(1)(B)-(D).
[f]ails to complete or improperly completes the Employment Eligibility Verification Form, I-9; [h]as information available to it that would indicate that the alien is not authorized to work…or [a]cts with reckless and wanton disregard for the legal consequence of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.