Legal Authority and Agency Enforcement
| Author | Charles M. Miller/Daniel Brown/Marcine Anne Seid |
| Profession | Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California |
| Pages | 1-18 |
1
1.01 SOURCES OF IMMIGRATION AUTHORITY
The U.S. immigration laws, which are those laws concerning entry, admission, removal,
departure, and employability of foreign nationals, are governed by federal law. Federal
law provides for the administration of the immigration and related systems as well as the
extent of the judicial review of those systems. U.S. citizenship law, including acquisition
and naturalization, is also a system of federal laws and administration. Since 9/11 there
has been a growing trend for states to pass their own immigration- related laws.1
The Immigration and Nationality Act of 1952 (INA), as amended, is the statutory
source of immigration and citizenship law. Federal immigration statutes are usually passed
as amendments to the INA and are codied as Title 8 of the United States Code (U.S.C.).
Federal court decisions involving the agencies may have precedential value, depending
on the court rendering the decision and its jurisdiction. A decision by the U.S. Supreme
Court is, of course, binding on all federal courts nationwide, while a decision by a U.S.
Court of Appeals is binding only on federal courts located within that circuit. A decision
by a U.S. District Court may have limited, if any, precedential effect.2
In researching immigration or citizenship law, begin with the federal statutes, which
provide the framework for the system. It is important to remember that there are many
more agency regulations (which affect benets and penalties) than there are statutes.
When a federal statute is enacted, there is often a delegation of authority to a federal
agency to implement the law, consistent with the terms of the statute. Agency regulations
contain the details and procedures that give the public notice of how to apply for benets
or comply with the law to avoid its penalties. Regulations, along with statutes, are admin-
istered and enforced by the agencies and interpreted by the federal courts. The immigration
regulations of the Department of Homeland Security (DHS) are contained in Title 8 of
the Code of Federal Regulations (C.F.R.). DHS regulatory numbering generally tracks the
numbering of sections in the INA, as amended. For example, the regulations concerning
INA § 245 are found at 8 C.F.R. § 245.
1. See §1.07.
2. Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977); Threadgill v.
Armstrong World Indus., 928 F.2d 1366, 1371 (3d Cir. 1991).
1Legal Authority
and Agency
Enforcement
2 Immigration Compliance and Best Practices
One major INA amendment, the Immigration Reform and Control Act of 1986
(IRCA), makes it unlawful for an employer, recruiter, or referrer for a fee to knowingly
hire or continue to employ an unauthorized alien for U.S. employment.3 IRCA requires
that all U.S. employers conduct employment verications on Form I-9. Employer sanc-
tions laws are found in amendments to the INA and corresponding U.S.C. sections. IRCA’s
employment verication provisions are codied at INA § 274A, 8 U.S.C. § 1324a. Policy
guidance is found in the revised Form I-9,4 the Handbook for Employers,5 and the regula-
tions found in 8 C.F.R. § 274a.
IRCA makes it unlawful for an employer, recruiter, or referrer for a fee to knowingly
hire or to continue to employ an unauthorized alien.6 IRCA makes it the responsibility of
every U.S. employer to conduct employment verication.7 Under this verication system,
all employers are required to examine the documentation of identity and the legal right to
work of every new employee, whether U.S. citizen, national, or alien, hired after Novem-
ber 6, 1986. Both the employer and employee must make attestations on Form I-9.8
IRCA also prohibits discrimination based on national origin, citizenship status, and
foreign appearance in hiring, ring, and referral or recruitment for a fee.9 National origin
discrimination is also prohibited under Title VII of the Civil Rights Act of 1964.10 IRC A’s
prohibitions against immigration- related discrimination are incorporated into the INA as
section 274B; 8 U.S.C. § 1324b.
Employers found to have violated any of the Unfair Immigration-Related Employ-
ment Practices (UIREP) by discriminating against protected individuals based on citizen-
ship status, discriminating against an employee or groups of employees based on national
origin, or otherwise violating the prohibition against intimidation and retaliation have
potential liability under INA § 274B(g).
The E-Verify system was created in 1996 by Congress as the Basic Pilot Program with
the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
to initiate an electronic employment verication pilot program.11 Currently, E-Verify is
voluntary for most employers unless the employer’s use is mandated by state law or under
the Federal Acquisition Regulation (FAR), which require most federal contractors and
subcontractors to enroll in and use the E-Verify system.12
3. Act of Nov. 5, 1986, Pub. L. No. 99.603, codied at the Immigration and Nationality Act of
1952 (INA) § 274A(a)(l)(A), 8 U.S.C. § 1324a(a)(1)(A).
4. See Appendix B.
5. U.S. Citizenship and Immigration Services (USCIS), Handbook for Employers: Guidance for
Completing Form I-9 (Rev. 2017), https://www.uscis.gov/i-9- central/handbook- employers- m-274
[hereinafter Handbook for Employers]; see Appendix E.
6. INA §§ 274A–274B, 8 U.S.C. §§ 1324a–1324b.
7. INA § 274A(a)(l)(A), supra note 2.
8. See H E § 1.0; see also Chapter 6 and Appendix E.
9. See H E § 11.0; see also Chapter 5 and Appendix E.
10. See H E § 11.0; see also Chapter 5 and Appendix E.
11. See Chapter 7.
12. See Chapter 8; § 1.07.
To continue reading
Request your trial