Safeguarding Employment for U.S. Workers : Do Undocumenteds Take Away Jobs?

Until passage of the Immigration Reform and Control Act of 1986 (IRCA), regulating the employment of non-citizens was held to be only a “peripheral concern” of the immigration statute. Beginning in 1987, United States employers were subject to sanctions for the hiring of undocumented workers, making it indisputable that Congress intends to use the immigration laws as a tool to protect American labor. Under IRCA, it is unlawful to knowingly employ an “alien [who is not] lawfully admitted for permanent residence” or who is “unauthorized to be…employed.” Although federal immigration policy now enshrines the principle that denying work opportunities to certain classes of non-citizens is a way to safeguard jobs for Americans, this seemingly common sense assumption obscures the complex relationship between domestic and foreign labor. For more than five years, the Immigration and Naturalization Service has been stymied in its efforts to implement a rule prohibiting immigrants from working while out on bond pending deportation or exclusion. The U.S. Attorney General has the authority to prescribe conditions governing a release under bond, including an employment ban. A challenge to the “no work rule” has been up to the U.S. Supreme Court and back. As this article demonstrates, the no-work rule is founded on a faulty hypothesis: “illegal” workers displace “legal” workers. While this may be the case in very limited circumstances, it by no means explains why U.S. laborers suffer unemployment, substandard working conditions and low wages. For that reason alone, the rule makes for poor public policy, and should permanently enjoined