Federal Employer Sanctions as Immigration Federalism

Authors

Darcy M. Pottle, UCLA School of Law

Abstract

For low-skilled workers in much of the world, U.S. admission policies make illegal immigration the most viable means of entering the country. Low average schooling, which disqualifies many potential immigrants from employment-based visas, and long queues affecting family preference immigration from high-traffic countries, make the admission criteria outlined in the U.S. Immigration and Nationality Act (INA) prohibitive for most would-be immigrants to the United States. Perhaps due to this failure of immediate legal avenues, many immigrants enter the country illegally. Though many eventually gain legal status, in the meantime they live and work in the United States without documentation. "Illegal immigration thus accomplishes what legal immigration does not: It moves large numbers of low-skilled workers from a low-productivity to a high-productivity environment." Recognizing that job opportunities are a significant motivating factor in the decision to come to the United States, President Reagan signed the Immigration Reform and Control Act (IRCA) in 1986, the "centerpiece" of which was the country's first comprehensive federal employer sanctions law. "Conditioning U.S. jobs on proof of [work] authorization, so the logic went, would deter immigrants from coming to the United States for work reasons, encourage those that were here without meaningful job opportunities to return home, and over the long term reduce the rate of unauthorized migration." The Senate report for a version of the bill that became IRCA suggested that, while Third World development, closing the gap in wage disparity and working conditions, and the achievement of higher standards of living in sending countries were longterm goals that would help curb illegal immigration, the short-term cure was to eliminate the availability of the jobs that serve as a magnet. Prohibiting the hiring of unauthorized workers would be the most immediate way to cause meaningful change in the amount of unlawful migration to the United States. This Note explores the ways in which the failings of the current system of employer sanctions should render employer sanctions invalid for the same reasons that underlie preemption of state and local immigration enforcement laws. Because sanctions are intended to have a direct impact on inmiigration and require individual, private employers to enforce immigration law (without training!) as screeners of employees' eligibility and immigration status, IPCA's employer sanctions scheme results in an uneven and inconsistent application of what is meant to be a comprehensive federal scheme of immigration law. Moreover, if proposals to ramp up employer sanctions are successful, the potential for workplace discrinination will increase because employers, having access to only inadequate means of verifying work authorization, will face dueling liabilities under antidiscrimination and immigration law.

Recommended Citation

Darcy M. Pottle, Federal Employer Sanctions as Immigration Federalism, 16 Mich. J. Race & L. 99 (2010).
Available at: https://repository.law.umich.edu/mjrl/vol16/iss1/4