Statement on Signing the Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 is the most comprehensive reform of our immigration laws since 1952. In the past 35 years our nation has been increasingly affected by illegal immigration. This legislation takes a major step toward meeting this challenge to our sovereignty. At the same time, it preserves and enhances the Nation's heritage of legal immigration. I am pleased to sign the bill into law.

In 1981 this administration asked the Congress to pass a comprehensive legislative package, including employer sanctions, other measures to increase enforcement of the immigration laws, and legalization. The act provides these three essential components. The employer sanctions program is the keystone and major element. It will remove the incentive for illegal immigration by eliminating the job opportunities which draw illegal aliens here. We have consistently supported a legalization program which is both generous to the alien and fair to the countless thousands of people throughout the world who seek legally to come to America. The legalization provisions in this act will go far to improve the lives of a class of individuals who now must hide in the shadows, without access to many of the benefits of a free and open society. Very soon many of these men and women will be able to step into the sunlight and, ultimately, if they choose, they may become Americans.

Section 102(a) of the bill adds section 274B to the Immigration and Nationality Act. This new section relates to certain kinds of discrimination in connection with employment in the United States. Section 274B(a) provides that it is an "unfair immigration-related employment practice" to "discriminate against" any individual in hiring, recruitment or referral for a fee, or discharging from employment "because of" such individual's national origin or—if such individual is a United States citizen or an alien who is a lawful permanent resident, refugee admitted under INA section 207, or asylee granted asylum under section 208, and who has taken certain steps evidencing an intent to become a United States citizen-because of such individual's citizenship status. Employers of fewer than four employees are expressly exempted from coverage. Discrimination against an "unauthorized alien," as defined in section 274A(h)(3), is also not covered. Other exceptions include cases of discrimination because of national origin that are covered by title VII of the Civil Rights Act of 1964, discrimination based on citizenship status when lawfully required under government authority, and discrimination in favor of a United States citizen over an alien if the citizen is at least "equally qualified."

The major purpose of section 274B is to reduce the possibility that employer sanctions will result in increased national origin and alienage discrimination and to provide a remedy if employer sanctions enforcement does have this result. Accordingly, subsection (k) provides that the section will not apply to any discrimination that takes place after a repeal of employer sanctions if this should occur. In the light of this major purpose, the Special Counsel should exercise the discretion provided under subsection (d)(1) so as to limit the investigations conducted on his own initiative to cases involving discrimination apparently caused by an employer's fear of liability under the employer sanctions program.

I understand section 274B to require a "discriminatory intent" standard of proof: The party bringing the action must show that in the decisionmaking process the defendant's action was motivated by one of the prohibited criteria. Thus, it would be improper to use the "disparate impact" theory of recovery, which was developed under paragraph (2) of section 703(a) of title VII, in a line of Supreme Court cases over the last 1,5 years. This paragraph of title VII does not have a counterpart in section 274B. Section 274B tracks only the language of paragraph (1) of section 703(a), the basis of the "disparate treatment" (discriminatory intent) theory of recovery under title VII. Moreover, paragraph (d)(2) refers to "knowing an intentional discrimination" and "a pattern or practice of discriminatory activity." The meaning of the former phrase is self-evident, while the latter is taken from the Supreme Court's disparate treatment jurisprudence and thus includes the requirement of a discriminatory intent.

Thus, a facially neutral employee selection practice that is employed without discriminatory intent will be permissible under the provisions of section 274B. For example, the section does not preclude a requirement of English language skill or a minimum score on an aptitude test even if the employer cannot show a "manifest relationship" to the job in question or that the requirement is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," so long as the practice is not a guise used to discriminate on account of national origin or citizenship status. Indeed, unless the plaintiff presents evidence that the employer has intentionally discriminated on proscribed grounds, the employer need not offer any explanation for his employee selection procedures.

Section 274B(e) provides that the President shall appoint, with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices within the Justice Department, to serve for a term of 4 years. I understand this subsection to provide that the Special Counsel shall serve at the pleasure and with the policy guidance of the President, but for no longer than for a 4-year term (subject to reappointment by the President with the advice and consent of the Senate).

In accordance with the provisions of section 274B(h) and (j)(4), a requirement to pay attorneys' fees may be imposed against nonprevailing parties—including alleged victims or persons who file on their behalf as well as employers—if claims or defenses are made that do not have a reasonable foundation in both law arid fact. The same standard for the imposing of attorneys' fees applies to all nonprevailing parties. It is therefore expected that prevailing defendants would recover attorneys' fees in all eases for which this standard is satisfied, not merely in cases where the claim of the victim or person filing on their behalf is found to be vexatious or frivolous.

The provisions of new INA section 245A(a)(4)(B) and (b)(1)(C)(ii), added by section 201(a) of the bill, state that no alien would qualify for the lawful temporary or the permanent residence status provided in that section if he or she has been convicted of any felony or three or more misdemeanors committed in the United States.

New INA section 245A(d)(2) states that no alien would qualify for the lawful temporary or permanent residence status provided in that section if "likely to become [a] public charge [ ]." This disqualification could be waived by the Attorney General under certain circumstances. A likelihood that an applicant would become a public charge would exist, for example, if the applicant had failed to demonstrate either a history of employment in the United States of a kind that would provide sufficient means without public cash assistance for the support of the alien and his likely dependents who are not United States citizens or the possession of independent means sufficient by itself for such support for an indefinite period.

New INA section 245A(a)(3) requires that an applicant for legalization establish that he has been "continuously physically present in the United States since the date of the enactment" but states that "brief, casual, and innocent absences from the United States" will not be considered a break in the required continuous physical presence. To the extent that the INS has made available a procedure by which aliens can obtain permission to depart and reenter the United States after a brief, casual, and innocent absence by establishing a prima facie case of eligibility for adjustment of status under this section, I understand section 245A(a)(3) to require that an unauthorized departure and illegal reentry will constitute a break in "continuous physical presence."

New INA section 210(d), added by section 309(a) of the bill, provides that an alien who is "apprehended" before or during the application period for adjustment of status for certain "special agricultural workers," may not under certain circumstances related to the establishment of a nonfrivolous case of eligibility for such adjustment of status be excluded or deported. I understand this subsection not to authorize any alien to apply for admission to or to be admitted to the United States in order to apply for adjustment of status under this section. Aliens outside the United States may apply for adjustment of status under this section at an appropriate consular office outside the United States pursuant to the procedures established by the Attorney General, in cooperation with the Secretary of State, as provided in section 210(b)(1)(B).

Section 304 of the bill establishes the Commission on Agricultural Workers, half of whose 19 members are appointed by the executive branch and half by the legislative branch. This hybrid Commission is not consistent with constitutional separation of powers. However, the Commission's role will be entirely advisory.

Section 304(g) provides that upon request of the Commission's Chairman, the head of "any department or agency of the United States" must supply "information necessary to enable it to carry out [the] section." Although I expect that the executive branch will cooperate closely with the Commission, its access to executive branch information will be limited in accordance with established principles of law, including the constitutional separation of powers.

Section 601 establishes a Commission for the Study of International Migration and Cooperative Economic Development, all of whose members are appointed by the legislative branch. Section 601(d)(1) states that the access to executive branch information required under section 304(g) must be provided to this Commission also. Accordingly, the comments of the preceding paragraph are appropriate here as well.

New INA section 274A(a)(5) provides that a person or entity shall be deemed in compliance with the employment verification system in the case of an individual who is referred for employment by a State employment agency if that person or entity retains documentation of such referral certifying that the agency complied with the verification system with respect to the individual referred. I understand this provision not to mandate State employment agencies to issue referral documents certifying compliance with the verification system or to impose any additional affirmative duty or obligation on the offices or personnel of such agencies.

Distance has not discouraged illegal immigration to the United States from all around the globe. The problem of illegal immigration should not, therefore, be seen as a problem between the United States and its neighbors. Our objective is only to establish a reasonable, fair, orderly, and secure system of immigration into this country and not to discriminate in any way against particular nations or people.

The act I am signing today is the product of one of the longest and most difficult legislative undertakings of recent memory. It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms. Future generations of Americans will be thankful for our efforts to humanely regain control of our borders and thereby preserve the value of one of the most sacred possessions of our people: American citizenship.