The Immigration Reform and Control Act (IRCA) makes it illegal for employers to employ knowingly an unauthorized alien, but it also prohibits employers from discriminating against employees on the basis of national origin or citizenship status. Here’s what employers need to know about the IRCA:
Prohibition Against Employing Unauthorized Aliens
The IRCA states that it is illegal for an employer “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 . . . with respect to such employment.” The IRCA also generally makes it illegal to hire an individual for employment in the United States without verifying his or her eligibility to work in the United States through the I-9 process. Good faith compliance with the I-9 process is an affirmative defense to an allegation of knowing employment of unauthorized aliens. 8 U.S.C. § 1324a.
Prohibition Against Discrimination On the Basis of National Origin or Citizenship Status
The IRCA make it illegal for an employer to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment because of: (i) the individual’s national origin; or (ii) the individual’s citizenship status. However, the IRCA states that it is not illegal for an employer “to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.” 8 U.S.C. § 1324b.
Takeaways: In some circumstances, it can be difficult for employers to comply with the dual purposes of the IRCA. Employers must be concerned not only with avoiding employment of unauthorized aliens, but also with avoiding discrimination against individuals based on their citizenship status or national origin. Careful compliance with the I-9 process is one of the most effective ways to minimize an employer’s risks in this area.