HR and the Immigration Issue

IRCA (the Immigration Reform and Control Act) made it illegal for any employer to knowingly hire persons who did not have authority to work in the United States. My concept of illegal immigration and how that concept applies to HR and business is pretty straightforward. Each employer must verify identity and eligibility to work of every new hire. At that point, it seemed pretty obvious that the federal government was putting the monkey of illegal immigration on the back of employers …

I was fairly new to personnel work (what we called it in those days) when IRCA was enacted in 1986. I was working at a large hardware company (200+ people) in one of the mid-Atlantic states. We didn’t really have a lot of “illegals” apply to work for the company. At least not that we knew about …, but there was a lot of gnashing of the teeth anyway. You know, ‘the federal government’s getting into our business, how can we operate with all these regulations’, and so on. Because of the type of experience we required and the market we were in, it was unlikely that undocumented aliens would be a fit for our openings anyway.

Regardless, I completed the Form I9 for each new hire to ensure that we weren’t being infiltrated by an alien element, foreign agents, people who would ultimately end up on the public dole, or whose children might be educated at taxpayer cost, … No one within the company ever asked to see the forms. No one outside of the company (i.e. the Feds) ever asked to see the forms. But my personnel files got fatter and fatter.

My next job was with a manufacturing company. As you might imagine, that was an entirely different ballgame. The company had facilities stretching across the country. Each respective facility’s IRCA-related issues would depend upon that facility’s location in the country. Again, I consistently followed the law or tried to. The company would have issues here and there, depending upon the specific facility’s location. Many of the company’s personnel managers became overly wound up about review of the I9 documents. It always seemed easy for personnel people to forget that the government’s intention was that the employer make a “good faith” effort to ensure that the documents were legitimate. Like with so many other issues, they tended to over-intellectualize. We weren’t attorneys, or FBI document specialists …, we were personnel people.

Let’s face it, this isn’t rocket science. Upon date of hire and within the first three days of employment, the following must occur: 1) the new employee completes Section 1, including name, address, birth date, citizenship status, etc. and signs the section (must be completed day one); 2) within the first three days of employment, the employer examines documents presented by employee indicating identity and eligibility to work and signs Section 2 attesting to the legitimacy of the documents and that the employee is authorized to work in the United States. The form must be completed by Day 3 of employment, unless there are mitigating circumstances. Retention requirements can be confusing, but they’re not that bad in the context of an overall records retention program. A reasonable HR solution that any company can put into place.

My most recent position was in construction, one of the industries targeted by ICE (Immigration and Customs Enforcement) for special enforcement efforts. An extremely large portion of our field work force was Hispanic. With 50-70 ongoing projects at one time and onsite superintendents responsible for hiring and the employment verification process, it could be interesting to say the least.

Superintendents dealt with the applicants and applications in the field and sent them in to the main office to be processed. We set up special procedures to ensure that a superintendent wouldn’t go all the way through the application process with an applicant only to find out on the day the new hire started he couldn’t produce legitimate documentation. It took a while, but the people in the field came to realize that the process had to be based on discipline – everyone was treated in the same manner.

Currently, that “monkey” is back where it was in 1986 – on the back of American businesses. The federal government failed from the beginning to enforce essentially any of the immigration laws on the books. Over the years, starting in 1986, it has actually passed laws that have amnestied over 5,000,000 illegal aliens while the states struggle to finance education and other services. (Almost 3,000,000 immigrants were given amnesty when IRCA was passed in 1986 – part of a compromise) The government has alternately raided businesses and arrested suspected illegal workers and, most recently, arrested the owners and managers of businesses that intentionally employ illegal workers.

Human resource practitioners can’t solve the issues related to illegal immigration. However, we can follow the laws that are on the books (regardless of whether the government enforces them or not). A large part of our responsibility has always been compliance. A big part of that is assisting the owners and managers with whom we work to comply with those same laws.