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The impact of the new
immigration reform act
Howard
R.
Rosenberg
0
John
W.
Mamer
Many questions main unanswered
The Immigration Reform and Control
Act of
1986
(IRCA) became law last fall,
barely two months after most observers
had concluded that the
99th
Congress
would be unable to reach agreement on its
sensitive provisions.
A
monumental, com-
plex amendment to the Immigration and
Nationality Act, the new law addresses
related issues of border control, status of
undocumented aliens, labor supply and
employment practices, civil rights, social
services, and administration of
the
law it-
self.
The
1986
law was passed “to effective-
ly
control unauthorized immigration to
the United States” (Conference Commit-
tee Report
99-1000,
p.
1).
It is based on
beliefs that a sovereign nation needs to
control its borders, that U.S. borders are
out of control, and that those aliens who
cross them seek income through employ-
ment. The main thrust of the law is there-
fore to reduce job opportunities for
un-
authorized aliens by prohibiting employ-
ers from hiring them.
Although it affects all employers and
employees in the nation, the act will have
its greatest impact on illegal aliens and
their employers, many of whom farm in
California. Under the act, employers are
now prohibited from hiring unauthorized
aliens, but many aliens who have lived
or
worked here illegally can acquire legal
status. Special provisions in the law are
designed to assist producers of perishable
crops in making the transition to a legal
workforce, and in general, the law con-
tains measures to soften and defer the
more substantial adjustments it requires.
The law became effective when signed
November
6, 1986,
but it gives employers,
aliens, and agencies time to learn and ad-
just to what it requires of them. The U.S.
Department of Justice (Attorney Gener-
al), in cooperation with the Departments
of Agriculture, Labor, Health and Human
Services, Commerce, and State, has until
June
1, 1987,
to disseminate forms and
information about the law. Drafts of regu-
lations, forms, and procedures are cur-
rently being circulated for public com-
ment. Those affected by
the
Immigration
Reform and Control Act will need to un-
derstand the act and its provisions, but the
law is not yet entirely clear. While it
specifies timetables, penalties, and imple-
mentation guidelines, it also directs gov-
ernment agencies to develop many oper-
ating regulations. Statutory amendments
and judicial decisions will undoubtedly
further clarify the law in the coming
years.
Employer sanctions
The
1986
act makes it illegal for any-
body to knowingly hire, recruit,
or
refer
for a fee an alien not authorized to work
in the United States. It requires employ-
ers to inspect documents that show
the
identity and the authorization to work in
the United States of every employee hired
after November
6,
1986.
It requires the
employer to sign and retain a form stat-
ing what documents have been
so
exam-
ined, and the employee to sign a form at-
testing that
he
or
she has legal status.
Violations can bring heavy penalties,
$250
to
$10,000
and even imprisonment for
each instance of “knowingly hiring” and
$100
to
$1,000
for paperwork failures,
even in connection with the employment
of a citizen.
To discourage employers from avoid-
ing workers who may appear to be from
an immigrant group, the new law prohib-
its most employment discrimination on
the basis of national origin
or
citizenship,
with specified limited exceptions. It dir-
ects the Comptroller General to report
annually for three years to Congress on
the extent of such discrimination.
Legalization
of
aliens
The law provides three mechanisms by
which people who have lived
or
worked
illegally in
the
United States may obtain
legal resident status. Two are based pri-
marily on long continuous residence,
the
third on recent performance of agricul-
tural work.
The first means of legalization updates
a previous law. Now anyone who has con-
tinously resided in the United States since
January
1, 1972
(instead of
1948,
as in the
earlier law) may petition the local Immi-
gration and Naturalization Service office
directly for permanent resident status.
The other two means of obtaining legal
status, the “general legalization” and
“special agricultural worker” (SAW) pro-
grams, are newly created by the
1986
law.
An alien is eligible for temporary legal
resident status under
the
general pro-
gram if he
or
she
(1)
has resided continu-
ously in
the
United States in unlawful sta-
tus
since January
1, 1982, (2)
has been
physically present in the United States
since the law took
effect
on November
6,
1986,
and
(3)
is not excluded under other
immigration law (e.g., for having been
convicted of a felony, endangering nation-
al security, being a likely “public
charge”). People outside the United States
may not apply, even if they have homes
here.
The application period for the general
program is from May
5,
1987,
to May
4,
1988.
There are no limits to the number of
people who can qualify. Temporary legal
status, retained with continuous residence
in the United States, is good for only
2%
years, but can convert to permanent resi-
dent alien status.
An
alien will have a
1-
year period, between
18
and
30
months
after obtaining temporary status, to apply
for permanent status.
The special agricultural worker pro-
gram allows adjustment to temporary le-
gal status for many workers who have not
been here long enough to qualify for the
general program. It is available only to
persons who
(1)
were employed for
90
or
more man-days in field work on fruits,
vegetables,
or
other perishable crops be-
tween May
1, 1985,
and May
1, 1986,
and
(2)
lived in the United States for at least
3
months between May
1, 1985,
and May
1,
1986.
Neither the work days nor residence
months have to be continuous, but they
must have occurred during the periods
specified. Persons who may have worked
extensively in prior years but not for
90
days in seasonal agriculture between May
1, 1985,
and May
1, 1986,
are not eligible.
The application period for the special
agricultural worker program is from
June
1, 1987,
to November
30,
1988.
The
first
350,000
applicants who apply and
can also show that they
(1)
performed sea-
sonal agricultural work for at least
90
days from May
1,1983
to May
1,1984,
and
90
days from May
1,1984,
to May
1,1985,
and
(2)
resided in the United States for at
least
6
months in each of those 12-month
periods, will be classified as “Group
1.”
They will become eligible for conversion
to permanent resident alien status after
1
year in temporary status
or
December
1,
1989,
whichever is later. Everyone else
who meets the basic requirements of this
program will be classified as “Group
2”
30
CALIFORNIA AGRICULTURE, MARCH-APRIL
1987
and receive permanent resident status
after
2
years as a temporary resident
alien or December
1,
1990, whichever is
later. This program does
not
require con-
tinuous residency to maintain legal sta-
tus.
Documentary evidence supporting eli-
gibility for legalization will be required
under each program. The Immigration
and Naturalization Service will accept
applications at special legalization cen-
ters opening on May
5,
1987. It will also
name voluntary organizations and other
qualified state, local and community
groups as “designated entities” to assist
aliens in determining their eligibility and
preparing applications for legal status.
The new law protects the confidentiality
of all transactions between aliens and
designated entities.
Aliens who obtain legal temporary or
permanent status will be free to live and
work anywhere in the United States. The
law anticipates the potential departure
from agricultural work of even those who
qualify under the special agricultural
worker program. It allows “replenish-
ment agricultural workers” (RAWS) to en-
ter the United States with temporary le-
gal status each year from 1990 to 1993 if
farm labor shortages develop. Secretaries
of Agriculture and Labor will be responsi-
ble for determining the number of work-
ers, if any, to admit each year by means
of a formula that includes the number of
workers legalized under the special agri-
cultural worker program, changes in per-
ishable crop acreage, and technological
developments. Replenishment workers
must work 90 days per year in seasonal
agricultural services to maintain tempo-
rary legal status. After 3 years, they may
obtain permanent resident status and
seek employment in any industry. Eligi-
bility for naturalization requires two ad-
ditional years of employment in seasonal
agricultural services.
Temporary admission
of
H-2A
workers
If they cannot meet their labor needs
through recruitment from the expanded
pool of legal residents, employers can still
be certified to hire nonimmigrant work-
ers from outside the United States for
temporary or seasonal work. Most agri-
cultural employers have found the exist-
ing H-2 visa program impractical. The
1986 law creates a new H-2A classifica-
tion for temporary farm work and some-
what streamlines the employer certifica-
tion process. Certification depends on
showing that sufficient numbers of quali-
fied workers are not otherwise available
and that employment of nonresident
aliens would not adversely affect wages
and working conditions of other workers
in the United States.
Under the new H-2A program, employ-
ers can apply for certification closer to
the time (no more than
60
days before) the
workers are needed. The new law obli-
gates the Department of Labor to expe-
dite action on employer applications,
modified applications that are promptly
resubmitted after denial, appeals, and
performance failures of domestically
re-
cruited workers. It requires certified em-
ployers, however, to offer H-2A workers
housing, workers’ compensation insur-
ance, and other terms of employment to
be defined by the Secretary of Labor. Un-
til at least June 1990, H-2A employers
will also have to hire any qualified domes-
tic worker who applies during the first
50
percent of the certification period.
Enforcement and assessment
Congress expressed its sense that im-
migration laws should be vigorously and
uniformly enforced, with due regard to
constitutional rights, personal safety, and
human dignity. While
the
new law re-
stricts Immigration and Naturalization
officers from searching outdoor agricul-
tural operations without
the
owner’s con-
sent
or
a search warrant, it funds more
intensive border patrol activity. The law
adds some $420 million annually to the
Immigration and Naturalization Service
appropriation for inspection at the border
as well as within the interior. It also au-
thorizes supplementary funds to the De-
partment of Labor for enforcement of
wage and hour laws.
The law phases in full enforcement of
employer sanctions.
No
penalties
or
cita-
tions for hiring without documentation
are authorized until June 1987. Penalties
with respect to the employment of season-
al agricultural workers are not to be im-
posed until November 1988 (at the end of
the SAW application period). Aliens ap-
prehended by the Immigration pd Natu-
ralization Service before applying for le-
galization can avoid deportation and
obtain temporary work authorization by
presenting a nonfrivolous case for legal-
ization. Individuals who need to travel
abroad for emergencies
or
humanitarian
purposes before applying can receive pri-
or authorizatiorso2 do
so.
The new immigration law establishes
a Commission on Agricultural Workers to
report to Congress within five years on
the impact of its provisions on agricul-
ture. Among its specific charges is to as-
sess the relationship between agricultural
labor management practices and recruit-
ment problems. The law also instructs
other government departments to report
in coming years on immigration, unauth-
orized alien employment and employer
sanctions, the H-2A program, the general
legalization program, and cooperative
economic development in the Western
Hemisphere.
Uncertainties
Operation and results of the new pro-
grams created will be shaped by not only
the
law itself but also determinations that
it has left for administering agencies to
make. For example, how “continuous resi-
dence” and “perishable agriculture” are
defined in the regulations will significant-
ly affect the eligibility of aliens for gener-
al and special agricultural worker legal-
ization, respectively. The selection and
training of designated entities will surely
have a bearing on the number of applica-
tions for legal status made and the effec-
tiveness with which they are processed.
Clarification of growers’ responsibility
for verifying legal status of labor contrac-
tor employees will influence the propensi-
ty to hire directly. Procedures for imple-
menting the new H-2A requirement to
hire domestic workers, even after certifi-
cation, will affect the popularity and
workability of that program, as will the
way the Secretaries of Labor and Agricul-
ture use the law’s formula to determine
the number of replenishment workers to
admit each year.
Another set of uncertainties pertains
to
the
performance of government agen-
cies under the law. The vigor and ingenu-
ity with which the Immigration and Natu-
ralization Service and Department of
Labor enforce hiring rules and labor stan-
dards will be reflected in employer com-
pliance. Whether state employment ser-
vices take on the task of verifying work
authorization of individuals they refer
will affect the use that employers make of
them.
Choices
The effectiveness of the Immigration
Reform and Control Act of 1986 as public
policy will depend mainly on the choices
that employers and aliens make. The law
contains a complex of incentives and dis-
incentives designed to influence the hu-
man behavior that produces illegal immi-
gration.
Whether and how to comply with the
law’s mandates and prohibitions with re-
spect to hiring is only the most obvious set
of issues before employers. Some groups
may even challenge the law. Employers
intending to avoid violations clearly need
to inform themselves and hiring staff
about the law, incorporate document
checking and the signing of attestation
forms into employee selection processes,
and adjust personnel record systems.
CALIFORNIA AGRICULTURE, MARCH-APRIL
1987 31
Agricultural Experiment Station
UNIVERSITY
OF
CALIFORNIA
Berkeley, California 94720
Lowell
N.
Lewis, Director
BULK
RATE
POSTAGE
8
FEES
PAID
USDA
PERMIT
No. G269
Publication
PENALTY
FOR
PRIVATE USE,
$300
Other employer efforts, though not re-
quired by the 1986 law, may be advanta-
geous under the new regulatory circum-
stances. They would include
(1)
assessing
the extent of current dependence on
un-
authorized employees,
(2)
informing em-
ployees about and helping them take ad-
vantage of legalization opportunities, and
(3)
modifying personnel management
practices to engender greater employee
loyalty and workforce stability.
The main choices before currently un-
authorized aliens are whether to pursue
legal status when the application period
begins and what to do in the meantime.
Ironically, successful legalization will re-
quire some behavior quite different from
that which had enabled aliens to remain
and work illegally in the United States be-
fore the new law was passed.
A
continued
disposition to avoid the authorities is un-
derstandable.
Provision for designated entities to of-
fer confidential assistance will undoubt-
edly help potential applicants overcome
their reluctance to deal with official im-
migration processes. Agricultural em-
ployers’ associations have actively en-
couraged members to get the word about
legalization out to employees. Neverthe-
less, instances of immigration consultants
and attorneys parlaying aliens’
fears
into
large fees for virtually useless consulta-
tions are already numerous. Although
some specific cases will undoubtedly re-
quire legal assistance, the law attempts to
spare most applicants the effort and ex-
pense of such counsel.
Aliens who do intend to apply for legal
status can help themselves by acquiring
and organizing documents that will sub-
stantiate their eligibility. Once in legal
status, their choices of where to seek em-
ployment will affect the number of agri-
cultural job opportunities that will poten-
tially draw new immigrants across the
border.
Finally, aliens not eligible for legal
residence in the United States will contin-
ue to face the decision of whether or not to
come to or remain in this nation. The new
law has, however, changed the costs and
benefits attached to their options.
Outcomes
to
assess
The Immigration Reform and Control
Act of 1986 addresses a national dilemma
that has been developing for two decades.
Previous legislative neglect has permit-
ted patterns of dependence on unauthor-
ized immigration. Any alteration of a situ-
ation to which
so
many people have
adjusted is bound to cause discomfort and
meet resistance. The complexity of the
new
law reflects its makers’ efforts to
meet the diverse interests of several
groups. While the forces that produced
immigration reform legislation were in-
exorable, what the impacts of the new
law will be is far from certain.
Some empirical questions on the
emerging research agenda are: Will em-
ployers refrain from hiring unauthorized
aliens? What will distinguish those who do
from those who do not? How will agricul-
tural employers alter their personnel
management practices to attract and re-
tain employees in a less isolated labor
market? What benefits will employers
re-
alize from assisting aliens in the legaliza-
tion process? How many aliens will really
step forward and apply for legal status?
How many and which aliens legalized as
special agricultural workers will move to
employment outside agriculture? Will
farm labor union organizing increase or
decrease? Will the flow of
new
immi-
grants illegally crossing the border dimin-
ish? What will aliens already here but in-
eligible for legal status do? Will efforts to
mechanize labor-intensive farm oper-
ations be accelerated?
The new law is not, of course, the sole
factor affecting answers to these ques-
tions. Employer sanctions for hiring
un-
authorized workers will tend to reduce
employment opportunities that “pull”
aliens across the border. On the other
hand, the new law does not treat the pri-
mary “push” factor, the dearth of earning
opportunities in Mexico. Expanded em-
ployment opportunities in the nonfarm
sector in the US. economy might attract
unauthorized aliens in this country direct-
ly, or indirectly by bidding legal workers
away from agricultural jobs.
The Immigration Reform and Control
Act of 1986 can be viewed as a brave
so-
cial experiment with no precedent.
Through responses of employers and
aliens it will yield an array of outcomes,
private as well as public, social as well as
economic, long-term as well as short.
Howard R. Rosenberg
is
Agricultural Personnel
Manaeernent Soecialist. and John
W.
Marner
is
La-
bor Ezonornist,’Cooperative Extension, University
of
California, Berkeley.
32
CALIFORNIA AGRICULTURE, MARCH-APRIL
1987
