Loophole in Employer Sanctions Provisions of the Immigration Laws Imperils Employers

By Michael W. Cutler, Senior Special Agent (Ret.)
September 23, 2010

Our country is now feeling the consequences of an immigration crisis that has manifested itself in nearly every challenge confronting our nation today. The great majority of the illegal aliens in our country were motivated by the same goal- to secure a job and send money back to their family members in their home countries.

The Immigration Reform and Control Act (IRCA) of 1986 is most often remembered as being the law that provided “amnesty” to approximately four million heretofore illegal aliens and placed them on the pathway to United States citizenship. IRCA also provided, for the first time, a new crime- that of intentionally hiring illegal aliens. This was comprehended under the “Employer Sanctions” provisions of the law.

The reasoning was that the “magnet” that drew the bulk of the illegal aliens into our country was the prospect of gainful employment. The employer sanction provisions of IRCA was supposed to turn off that powerful magnet.

However, as is the case with most of the immigration law enforcement effort- this remedy was designed to fail. The law that was supposed to punish employers who intentionally hired illegal aliens was never properly enforced because the Congress never funded an adequate number of law enforcement officers at the former INS (Immigration and Naturalization Service) now ICE (Immigration and Customs Enforcement).

Additionally, the way the law was written defied logic and, in my opinion, was made far more difficult to enforce than it ever should have been. Consider that according to Title 8 of the United States Code, Section 1304(e) every alien who is 18 years of age or older must carry on his (her) person, proof of “alien registration.” For a lawful immigrant that proof of alien registration is the “Green Card” that the alien is issued.

The law could simply have stated that all resident aliens must show their new employer their Alien Registration Card, after, all, if the alien in question is in compliance of the law he should be carrying that document at all times. However, while the alien who is a lawful immigrant may show his new employer his “Green Card” he does not have to. The employee decides what documents he wants to show, provided that the documents comply with the menu-like list of documents noted on the Form I-9.

The law further provides that the employer may not demand that the employee provide any specific document. For example, if an alien who claims to be a resident alien provides his new employer with a Social Security Card and a driver's license, even if that license is from a state on the other side of the country, the employer may not ask to see that alien's “green card.” The law clearly states that the employer would be violating the civil rights of the employee if he asked to see any specific documents. The new employee is supposed to be able to show whatever documents he decides to show the employer provided that they are on the list of approved documents.

Consider the dilemma this can create for the employer who wants to make certain that he complies with the requirement of the law that requires that he not hire illegal aliens- an act that can get an employer fined or even criminally prosecuted. However, the well-intentioned employer who has concerns about the authenticity of the documents his new employee shows him is by law, forbidden from asking to see additional documents. Should the employer ask to see any additional documents, he would be violating the Civil Rights provisions of the law and may face fines and/or prosecution! He may be sued by the government or by his employee!

This is not a hypothetical issue. Recently the United States Department of Justice initiated a lawsuit against Maricopa County Community College District in Phoenix for discriminating against aliens by asking to see the alien cards "green cards" of foreign nationals before hiring them!

The law should also mandate that E-Verify be used by employers, but that program remains optional.

This creates a “no-win” situation for employers. But it is not only the employers who cannot win- the citizens of our nation and lawful immigrants also lose!

Michael Cutler is a Senior Fellow for Californians for Population Stabilization (CAPS | CAPSweb.org and a retired Senior Special Agent of the former Immigration and Naturalization Service. in his 30 years of service, he rotated through all of the squads within the Investigations Branch of the New York office of the INS. He has testified at numerous Congressional hearings on the nexus between immigration and national security and is often invited to speak about immigration related issues on many television and radio programs.