Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails

Abstract

For a century before 1986, federal law permitted employers to hire undocumented immigrants. The Immigration Reform and Control Act of 1986 (“IRCA”) marked a sea change in immigration law by extending federal immigration regulation into the private workplace through the prohibition of employment of unauthorized immigrants. In the two decades since passage of this dramatic new ban, codified in the “employer sanctions” provisions of the Immigration and Nationality Act (“INA”), there has been almost no critical examination of its merits. Few commentators have analyzed whether sanctions achieve their twin purposes of deterring illegal immigration and protecting United States workers. Nevertheless, all serious proposals for immigration reform now under debate assume the continuation and even intensification of the prohibition on employment of unauthorized immigrants.