The Immigration Control and Reform Act (“IRCA”) essentially provides that when an illegal alien obtains a job in this country, either the employer has broken the law by not checking the person’s immigration status or the illegal alien has broken the law by presenting fraudulent documents to obtain the job. The Supreme Court of the United States in Hoffman Plastics Compounds, Inc. v. Nat’l Labor Relations Bd. addressed the policies underlying the IRCA within the context of an administrative agency decision.

At least two Supreme Court cases have determined that an illegal alien can present the claim of future lost wages to a jury even in light of the IRCA and Hoffman decision: here is one of those decisions, Balbuena v. IDR Realty. A decision in the Richmond County Supreme Court held that allowing an illegal alien to seek future lost wages undermines the policy considerations underpinning the IRCA.

The Appellate Division has not yet addressed this precise issue. It seems as if the courts that have allowed the plaintiffs to seek future lost wages have also closed one eye to the complex issues involved — that is, federal preemption issues, federal immigration policies, and the burden of litigant to establish damages award to a reasonable certainty.