(concurring in part, dissenting in part):
I concur in much of the majority opinion. Specifically, I agree that the Board has the power to order the Company to reinstate Benavides and Guzman, and that the Board properly conditioned that order upon their satisfaction of the normal requirements for verification of eligibility prescribed by the immigration laws. I also agree with the general proposition that the Board can award backpay to compensate an undocumented alien for injuries suffered as a result of an employer’s discrimination. However, I respectfully dissent because I disagree with the majority’s conclusion that, under current immigration law, backpay may be awarded for a period in which the alien’s employment was unlawful.
IRCA, enacted in 1986, makes it unlawful to (i) hire, or continue to employ, an alien “knowing the alien is [or has become] an unauthorized alien,” or (ii) hire an alien without complying with the extensive “employment verification system” — essentially a mandatory document review procedure — that is established by the statute. See 8 U.S.C. 1324a(a), (b).
In my view, we should deny enforcement of the NLRB’s order as written and should modify it to provide that Benavides and Guzman are entitled to backpay only from the date on which they established their eligibility for employment under the immigration laws, and not for any prior period in which they were unauthorized to work in the United States, and United States employers were forbidden to employ them. The backpay formulation that I would adopt has the indispensable virtue of being consistent with IRCA and the pre-IRCA case law. Moreover, it promotes the policies common to both IRCA and the NLRA; and it encourages aliens to seek lawful status and lawful employment.
It is possible that my approach will not yield a recovery for Benavides and Guzman; if so, that will be because they have remained in the United States for the six years following their discharge without having established lawful immigration and work status, or without trying to do so. But it is reasonable to expect an alien to comply with the immigration laws as a prerequisite to obtaining backpay; indeed, the majority correctly holds that such compliance is a prerequisite to obtaining reinstatement.
A
This is a case that requires the Board to craft a remedy that avoids conflict between the NLRA and another federal statute. According to the majority, the standard of review is that we will enforce such a remedy if the Board “reconciled the two statutes in a reasonable way.” Maj. Op. at 54, quoting NLRB v. Lee Hotel Corp., 13 F.3d 1347, 1351 (9th Cir.1994). This standard is supposed to afford “considerable deference” to the Board’s interpretation of the INA, but to be “more stringent with respect to the other statutes that Congress has not committed to the Board’s charge.” Maj. Op. at 54.
In my view, this standard of review is too deferential, and is likely to prove unworkable. The remedy given by the Board in this case necessarily entails a reading of a statute that is outside the Board’s field of expertise. The question therefore should not be wheth*60er the Board reconciled the statutes in a way that is “reasonable”; the proper question is whether the Board’s remedy is tailored to avoid any conflict between the NLRA and the requirements of another federal legislative scheme. See Sure-Tan Inc. v. NLRB, 467 U.S. 883, 903, 104 S.Ct. 2803, 2814, 81 L.Ed.2d 732 (1984).
I believe that the Board’s remedy fails under either standard: insofar as the Board awards backpay to undocumented aliens who are not lawfully available for work, the remedy is neither reasonable nor sufficiently tailored to avoid any conflict with the immigration laws. The NLRB opinion and the majority opinion solicitously preserve and reinforce the economic incentives for employers to comply with the labor laws, but do so without full appreciation of or equal effort to promote the economic incentives to obey the 'immigration laws. Thus the labor law dog wags the immigration law tail.
B
The principle that should decide this appeal is articulated in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984), and confirmed by Congress’ subsequent enactment of IRCA: An undocumented worker is not available for work, and therefore is not eligible for an award of backpay, for any period during which that worker’s employment was contrary to the immigration laws.
In Sure-Tan, the order under review directed the employer to reinstate undocumented workers and pay them six months’ backpay. However, because the workers had left the country, the relief was conditioned on their legal readmittance into the country. The Supreme Court held that the NLRA applied to undocumented aliens, and emphasized that there was no conflict between the NLRA and the immigration laws at that time, because “[f]or whatever reason, Congress ha[d] not adopted provisions in the INA making it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization.” Id. at 892-93, 104 S.Ct. at 2808-09. The Court also ruled that any remedies available to undocumented aliens under the NLRA must be sufficiently tailored to avoid conflicts with the immigration laws. Id. at 891-94, 903, 104 S.Ct. at 2808-10, 2811;.
Applying these principles, the Court confirmed the Board’s power to order reinstatement, but held that such an offer “must be conditioned upon the employees’ legal read-mittance to the United States” in order to avoid “a potential conflict with the INA.” Id. at 903, 104 S.Ct. at 2814. The Court also upheld the power of the Board to award backpay to undocumented workers, but declared that, “in computing backpay, the employees must be deemed ‘unavailable’ for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States.” Id. The controlling principle laid down in Sure-Tan is that an alien is not entitled to backpay unless the worker is “lawfully available for employment during the backpay period,” id. at 904, 104 S.Ct. at 2815 (emphasis added).1
Before the advent of IRCA in 1986, the Circuits split in their reading of Sure-Tan. The Ninth Circuit decided that Sure-Tan turned on the fact that the aliens had left the country, and that the case did not prohibit backpay to undocumented aliens who stayed inside the United States after illegal termination. Local 512, Warehouse and Office Workers’ Union v. NLRB, 795 F.2d 705 (9th Cir.1986) (“Felbro ”). The court reasoned *61that Sure-Tan was mainly concerned with the INA’s prohibition on illegal entry (in supposed contradistinction to illegal presence), and that an award of backpay to undocumented workers who never left would not induce an illegal entry. The Ninth Circuit explicitly acknowledged, however, that (at that time) the INA contained no provision making the employment of an unauthorized alien unlawful. Felbro, 795 F.2d at 719.
The Seventh Circuit rejected this narrow interpretation of Sure-Tan, holding instead that the Court plainly barred any award of backpay for any period in which an alien was undocumented regardless of whether they remained within the borders of the United States. Del Rey Torbilleria, Inc. v. NLRB, 976 F.2d 1115, 1120-22 (7th Cir.1992). The Seventh Circuit noted that the case before it arose prior to the enactment of IRCA, but indicated in dictum that IRCA — by prohibiting the employment of undocumented aliens — would “clearly” bar an award of backpay to undocumented workers wrongfully discharged after its enactment. Id. at 1122.
Although this Court has not previously interpreted Sure-Tan in the context of a backpay order under the NLRA, we have done so in the context of a claim for backpay under Title VII. In Rios v. Enterprise Ass’n Steamfitters Local Union 638, 860 F.2d 1168, 1172 n. 2 (2d Cir.1988), we recognized that “the law in this area has changed with the passage of [IRCA],” but did not consider the statute’s impact because the events in that case transpired before IRCA’s effective date. Instead, we interpreted Sure-Tan in much the same way the Ninth Circuit did in Felbro, and concluded that the claimants were eligible for backpay under Title VII as of the date of the violation (i) because they had not left the country during the backpay period, and (ii) because — at that time — their employment “would have violated no immigration law.” Id. at 1173 (emphasis added).
IRCA healed the circuit split. By prohibiting an employer from hiring an undocumented alien, Congress altered the premise that underlay the Ninth Circuit’s decision in Felbro, see 795 F.2d at 719, as well as our own decision in Rios, see 860 F.2d at 1173. Both Circuits have acknowledged that the 1986 enactment of IRCA may preclude an award of backpay to undocumented aliens. See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 n. 11 (9th Cir.1989) (IRCA “may well ... ehange[ ] the mix of policy considerations underlying the case law which supports our conclusion that undocumented employees may recover back pay in a Title VII action.”); Rios, 860 F.2d at 1172 n. 2.
The majority opinion fails to explain how awarding backpay to undocumented aliens— which was permissible only because there was no outright prohibition on their employment — can withstand IRCA, which effects such a prohibition. The majority concedes merely that IRCA “changed the INA’s silence with respect to the employment of illegal aliens,” and thereby altered “a significant element of the holdings of Sure-Tan, Felbro, and Rios.” See, Maj. Op. at 55. If saying that the “silence” was “changed” means that Congress has spoken, I agree, and I would decide that case on the basis of what Congress said.2
The majority goes on to argue, however, that a House Judiciary Committee Report regarding IRCA “demonstrates the intention to preserve the NLRA’s protection of and remedies for undocumented workers.” Maj. Op. at 55. Assuming that a committee report can or is needed to explicate what Congress has done in IRCA, there is no basis for the majority’s conclusion that the reference to the Board’s “powers ... to remedy unfair practices committed against undocumented employees,” see Maj. Op. at 56, quoting H.R.Rep. No. 99-682(1) (1986) at 58, reprinted in 1986 U.S.C.C.A.N. 5649, 5662, includes the power to award backpay. As the majority admits in another part of its opinion, there seems to be “[njothing in [IRCA] or its legis*62lative history suggesting Congress preferred either the Seventh or Ninth Circuit’s understanding of Sure-Tan.” Maj. Op. at 58. In the absence of any such evidence, the legislative history cited by the majority (if useful to begin with) is simply inconclusive.
It is indisputable that under IRCA the employment of an undocumented alien is now illegal. It closely follows that an undocumented alien is not “lawfully available for employment,” Sure-Tan, 467 U.S. at 904, 104 S.Ct. at 2815 (emphasis added), and therefore is not eligible for any award of backpay in any period during which that alien lacks work authorization, id. at 903, 104 S.Ct. at 2814-15. To hold otherwise creates a direct conflict between IRCA and the NLRA; and the Supreme Court has warned that any remedies available to undocumented workers under the NLRA must be tailored to avoid any conflict with the immigration laws. Id.
C
The majority enforces the NLRB’s order that backpay be paid from the date of discharge to the earlier of (i) the date on which the worker can be legally employed under the immigration laws and is reinstated, or (ii) the date on which some reasonable period of time has expired (following the remedial order) in which the worker may pursue such normalization of status. That remedy is foreclosed by Sure-Tan and IRCA, for the reasons set forth in section B. But the majority forcefully demonstrates that a backpay remedy is required in order to vindicate the important public purposes of the labor laws and the immigration laws, chiefly to avoid affording perverse incentives for rogue employers to hire undocumented aliens.3 It is possible, however, to give full play to the labor laws as well as the immigration laws by an award of backpay commencing on the date that the alien obtains authorization to work in the United States and thus becomes “lawfully available for employment,” Sure-Tan, 467 U.S. at 904, 104 S.Ct. at 2815, and continuing until the date of reinstatement. Unlike the remedy upheld by the majority, this solution is closely tailored to the verification requirements of IRCA, serves the policy goals of both IRCA and the NLRA, and — at the same time — encourages people to respect and comply with the immigration laws of the United States.4 Specifically, employer liability for backpay commencing on the date an alien obtains lawful employment status preserves a backpay remedy, thus deterring employers from hiring undocumented aliens in order to use them as pawns to resist unionization, and at the same time encourages undocumented aliens to achieve lawful presence and seek lawful employment status under the immigration laws without delay.
. This principle is consistent with the cases that uphold backpay awards to underage or unlicensed discriminatees. See, e.g., Justrite Mfg. Co., 238 N.L.R.B. 57 (1978) (underage discrimi-natee); New Foodland, Inc., 205 N.L.R.B. 418 (1973) (same); Robinson Freight Lines, 129 N.L.R.B. 1040 (1960) (unlicensed truck driver); Local 57, International Union of Operating Engineers, 108 N.L.R.B. 1225 (1954) (unlicensed engineer). The NLRB's opinion in the present matter and its brief before this Court rely upon these cases to argue that backpay can be awarded "despite a legal disability ... that render[s] the discriminatorily discharged employee unable to work legally.” 320 N.L.R.B. 408, 412 & n. 26. However, in each of those cases, the employment relationship itself was legal, and the employees were legally employable during the backpay period notwithstanding the fact that they were disqualified from performing the tasks and responsibilities for which they were primarily hired.
. The NLRB reads IRCA as I do:
Under provisions of IRCA, an employer who knowingly hires an "unauthorized alien" after November 6, 1986, is subject to criminal sanctions. Employers must also obtain verification from employees hired after November 6, 1986, that they are lawfully present and available for employment in the United States.
NLRB Casehandling Manual § 10546.7 (emphasis added).
. The majority argues (and I agree) that the failure to award any backpay in cases of this kind would (1) "increase the incentives for employers to hire undocumented aliens,” thereby undermining the purpose of the IRCA; and (2) "make undocumented workers an easy target for employers resisting union organization, and, thus, frustrate the rights of lawful U.S. workers under the NLRA.” Maj. Op. at 57-58.
. The majority's approach subverts and contradicts the immigration laws by compensating Be-navides and Guzman for prolonging their illegal residence in this country. Thus they may become entitled to years of salary (depending on how the NLRB computes the award), but would qualify for nothing (under the rule of Sure-Tan) if they had respected United States immigration law by returning to their countries. Considering that NLRB proceedings can span a whole decade, this is no small inducement to prolong illegal presence in the country.
The poor fit between the labor laws and the immigration laws (as the majority construes them) is further illustrated by an employee’s obligation to mitigate damages, a duty recognized by the Supreme Court in Sure-Tan, 467 U.S. at 901, 104 S.Ct. at 2813-14, but that cannot be performed by an undocumented alien without causing further violation of the immigration laws.
Some of the adverse effects of the majority's ruling should be mitigated, however, because there seems to be no reason an employer cannot toll the accrual of backpay by offering reinstatement on the condition (among other required conditions) that the worker get square with the INS.