Employer Sanctions: A Policy with a Pitfall?

The United States often views itself as a nation of immigrants. This may in part be why since the early 20th century the country has seldom adopted major changes in its immigration policy. Until 1986, only the 1924 National Origins Quota Act, its dismantlement in the 1952 McCarran-Walter Act, and the 1965 Immigration and Nationality Act, also known as the Hart-Celler Act, involved far-reaching reforms. Another large shift occurred with the passage of the 1986 Immigration Reform and Control Act (IRCA) and its derivative sequel, the 1990 Immigration Act. No major immigration legislation has yet won congressional approval in the 21st century. IRCA emerged from and followed in considerable measure the recommendations of the Select Commission on Immigration and Refugee Policy (1979–1981). That body sought to reconcile two competing political constituencies, one favoring the restriction of immigration, or at least unauthorized immigration, and the other an expansion of family-based and work-related migration. The IRCA legislation contained something for each side: the passage of employer sanctions, or serious penalties on employers for hiring unauthorized workers, for the restriction side; and the provision of a legalization program, which outlined a pathway for certain unauthorized entrants to obtain green cards and eventually citizenship, for the reform side. The complete legislative package also included other provisions: including criteria allowing the admission of agricultural workers, a measure providing financial assistance to states for the costs they would incur from migrants legalizing, a requirement that states develop ways to verify that migrants were eligible for welfare benefits, and a provision providing substantial boosts in funding for border enforcement activities. In the years after the enactment of IRCA, research has revealed that the two major compromise provisions, together with the agricultural workers provision, generated mixed results. Employer sanctions failed to curtail unauthorized migration much, in all likelihood because of minimal funding for enforcement, while legalization and the agricultural measures resulted in widespread enrollment, with almost all of the unauthorized migrants who qualified coming forward to take advantage of the opportunity to become U.S. legalized permanent residents (LPRs). But when the agricultural workers provisions allowing entry of temporary workers are juxtaposed with the relatively unenforceable employer-sanctions provisions, IRCA entailed contradictory elements that created frustration for some observers. In sociocultural, political, and historical terms, scholars and others can interpret IRCA’s legalization as reflecting the inclusive, pluralistic, and expansionist tendencies characteristic of much of 18th-century U.S. immigration. But some of IRCA’s other elements led to contradictory effects, with restriction efforts being offset by the allowances for more temporary workers. This helped to spawn subsequent political pressures in favor of new restrictive or exclusive immigration controls that created serious hazards for immigrants.

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