*As seen in the November 21st issue of The State Journal.

In 1986, spurred by an outcry against a wave of illegal immigration, the U.S. Congress enacted the Immigration Reform and Control Act ("IRCA"). IRCA created a legalization program that offered some undocumented immigrants the ability to gain U.S. permanent resident status and imposed a requirement that all U.S. employers verify the identity and employment authorization of all workers hired after November 6, 1986. In enacting the law, Congress sought to achieve a clean slate by legalizing eligible undocumented workers and by mandating for the first time that employers take an active role in policing their hires by hiring only legal workers. Since enactment, U.S. employers must examine the documents of new hires and complete an I-9 (Employment Eligibility Verification) form with each new hire within three days of the commencement of employment.

In enacting IRCA, Congress recognized that it was physically impossible for the U.S. Immigration and Naturalization Service ("INS"), then the agency charged with enforcing the nation's immigration laws, to monitor the millions of hires that U.S. companies make each year and to significantly stem the influx of undocumented workers. By placing an obligation on U.S. employers to check the legal work status of hires and adding teeth to the law by authorizing INS to levy fines for missing or faulty I-9 forms as well as for the knowing hire of undocumented workers, Congress aimed to improve the situation via a self-sustaining, largely self-policing system. Some companies have been hit with fines exceeding a million dollars due to the way that the fines are levied on a "per worker" basis.

The effectiveness of IRCA has been undermined by a number of factors. These include a combination of the powerful job magnet of the United States economy, the continuing economic weakness of the Mexican and other less developed economies, a U.S./Mexican border that continues to be porous, and the growing scourge of document fraud and identity theft which enables counterfeit rings to outpace the ability of employers to spot fraudulent documents presented by new hires who are undocumented. As a result, many U.S. companies, particularly in sectors such as agriculture, hospitality, and natural resources, employ significant numbers of undocumented workers who are working illegally despite the employer having reviewed, in good faith, documents presented by new hires that appear to satisfy the I-9 requirements.

The latest recession coupled with a growing public outrage over perceived federal inaction on the illegal immigration has given birth to a number of new enforcement initiatives. One of these initiatives is the federal "no match" rule which has been published but which is currently enjoined from implementation by a federal judge (but likely not for long). Under this rule, an employer who receives a letter from the Social Security Administration ("SSA") or Department of Homeland Security ("DHS") which advises the employer that the employee's name and Social Security Number do not match gives rise to an obligation by the employer to promptly determine if there is a clerical error giving rise to the mismatch. If not, the employer must promptly confront the worker to resolve the mismatch. If the investigation reveals that the worker is unauthorized or the worker cannot resolve the mismatch and complete a new I-9, the employer must terminate the worker. Failing to act on the no match letter can give rise to the more serious fines for "knowingly" employing undocumented workers if the workers are indeed working illegally and can also trigger criminal penalties.

Similarly, there is a new patchwork of regulations and State laws relating to a program known as E-Verify. This is an electronic program whereby an employer can register to use a federal database to verify the identity and work authorization of new hires. Some States have enacted laws which require employers doing business in the state to register for and use E-Verify and take other steps or be subject to fines and risk losing their business license. Earlier this week, the federal government issued a new rule which will soon require virtually all federal contractors to use E-Verify going forward or their contracts will not be renewed. Every company that is a federal contractor or state contractor or that is unaware of the rules in the State where they do business should promptly contact an immigration lawyer to protect their business.