Wyatt Employment Law Report

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Supreme Court Upholds Arizona Law Which Penalizes Employers That Hire Illegal Aliens

By Glen M. Krebs

On May 26, 2011, the U.S.Supreme Court in Chamber of Commerce of the United States of America v. Whiting, 563 U.S. ____ (2011) upheld the Legal Arizona Workers Act.  This case does not involve the (in)famous SB 1070 Arizona law which requires police to check the immigration status of individuals in certain circumstances (several provisions of SB 1070 have been struck down by the 9th Circuit Court of Appeals and are on appeal to the Supreme Court).

 In Whiting the Court acknowledged that states can impose sanctions through licensing and similar laws on those who employ unauthorized aliens.  For example, theArizona law instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens.  The Court relied on the federal Immigration Reform and Control Act language which specifically allows states to impose sanctions through licensing and similar laws.

 The Supreme Court also concluded thatArizona’s E-Verify mandate is not preempted by federal law.  The Court determined that the IIRIRA provision setting up E-Verify does not circumscribe state action.  Therefore,Arizona’s requirement that all employers participate in E-Verify was upheld.  The state law requires that an employer, after hiring an employee, verify the employment of the employee through E-Verify.  Federal laws do not require use of the E-Verify system unless you are a sub-contractor of the federal government.  

 According to the Supreme Court, the following states have laws that provide for suspension or revocation of business licenses as a sanction for employing unauthorized aliens:Colorado,Mississippi,Missouri,Pennsylvania,South Carolina,Tennessee,Virginia, andWest Virginia. The states ofMississippi,South Carolina, andVirginiaalso require employers to use E-Verify or other method of verification.

 In addition,Georgiahas recently enacted the Illegal Immigration Reform and Enforcement Act of 2011, which among other things requires employers to use E-Verify as a condition of issuance and renewal of business licenses.

 Other states may attempt to pass similar restrictions on employers.  Therefore, employers MUST be aware of state laws impacting their hiring practices and not just the federal laws. 

 For questions regarding E-Verify or other immigration laws in states where your company is operating, contactGlenKrebsat 859-288-7409 or gkrebs@wyattfirm.com.

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E-Verify, I-9, and No-Match: The Obama Approach

By Glen Krebs

I recently participated in an American Bar Association Tele-Seminar titled, “We Are a Nation of Immigrants . . . Or Are We?  The Obama Immigration Agenda So Far.”  The seminar covered E-verify, I-9 completion, and No-Match letters.  It also touched on perceived and stated enforcement priorities of the administration and 287(g).

The general consensus among the presenters was that the Obama Administration is increasing enforcement against employers in an attempt to appear “tough” on immigration.  It is supposed that this will give them more credibility during the upcoming debate on Comprehensive Immigration Reform.

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E-Verify Required For Federal Contractors In September. Is There More To Come?

By Kim Koratsky 

            Starting September 8, 2009, federal contractors will be required to use E-Verify to confirm that both current and newly hired employees working on federal contracts are authorized to work in the United States.  The E-Verify system allows employers to check Social Security and visa numbers against government databases via the Internet.  So, federal contractors (and subcontractors) must be prepared to implement this system in September, but is this where the requirement stops?  Yes, for now. 

             Many in Congress would like to require E-Verify for all employers. 

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