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Friday, May 27, 2011

Supreme Courts Gives States Green Light on Immigration Enforcement

By: Tommy Eden, Attorney

The Immigration Reform and Control Act (IRCA) makes it “unlawful for a person or other entity . . . to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that violate that prohibition may be subjected to federal civil and criminal sanctions as I have written about in several past articles. IRCA also restricts the ability of States to combat employment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2).

IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that verification process in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress created E-Verify—an internet-based system employers can use to check the work authorization status of employees. Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona Workers Act provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Alabama Legislature is currently in conference committee on its immigration reform bill with similar language.

The Chamber of Commerce of the United States and various business and civil rights organizations suit in Federal Court in CHAMBER OF COMMERCE OF UNITED STATES OF AMERICA v. WHITING arguing that the Arizona law state law’s license suspension and revocation provisions were both expressly and impliedly preempted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted.

The U.S. District Court Judge found that the plain language of IRCA’s preemption clause did not invalidate the Arizona law because the law did no more than impose licensing conditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation. The Ninth Circuit Court of Appeals affirmed. On May 26, 2011 the U.S. Supreme Court Affirmed finding “Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”

Common Sense Counsel: all Alabama Employers should expect that the Alabama Legislature will pass in this session Immigration Legislation that will mandate the use of E-Verify and impose new business licensing requirements. You can get ready by taking the following steps now:
• Enroll in E-Verify at
• Even if you are not a federal contractor (it is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE);
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Put an E-Verify policy in your employee handbook; and
• Make sure you are using the latest version of Form 1-9.

Tommy Eden is a Lee County native and attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance and also to the Governor’s Commission in 2008. He can be contacted at or 334-501-1540.