- Federal Litigation over Arizona's law mandating E-Verify
In 2007, Arizona passed a law mandating use of E-Verify by all employers in the State beginning January 1, 2008.
Business and immigration advocates filed two sets of lawsuits to prevent enforcement, which gained national attention. The first lawsuit
was dismissed by Judge Neil Wake on December 7, 2007. The judge said the plaintiffs had filed against the wrong defendants --
the Governor and Attorney General -- instead of the state county attorneys who will actually enforce the law. The judge also faulted
the business groups' challenge because they hadn't shown that they faced imminent crackdowns. The employers refiled on Monday, December 10, 2007 to correct
the technical defects and hopefully get a ruling on the merits of the lawsuit.
Civil rights and immigrant advocates also refiled on December 12, 2007, but with a different set of named defendants and
a different legal theory than the business groups. Both cases were heard by Judge Wake. Preliminary injunctive relief was denied as to all plaintiffs on December 21, 2007,
explained by the Court here, as was a stay of enforcement of the
Arizona Employer Sanctions Law pending an appeal of the first case that had been dismissed on December 7, 2007,
explained by the Court here.
On February 7, 2008, Judge Wake entered a dismissal of the second suit, thus denying any relief to those who challenged
the state employer sanctions law, which is formally known as the Legal Arizona Workers Act, and which will be referred to as
the employers sanctions for the rest of this discussion. The dismissal was appealed.
In a 37 page opinion, which can be viewed here, the Judge made these points:
1. Federal immigration law expressly exempts licensing sanctions by states to control employment of illegal aliens.
2. Federal actions regarding immigration rules do not have to be fully completed before state sanctions can be invoked.
3. The structure and spirit of federal immigration laws permit a generous interpretation of states' powers over
illegal immigration through licensing.
4. The Arizona employer sanctions law does not infringe upon federal powers over immigration and is consistent with the intent of the immigration laws.
The Court made a detailed and ground-breaking analysis of due process protections through an interplay of the e-Verify computerized system, the procedures to contest
the computerized records made available to a protesting employee under federal rules, and the court procedures under state law
to suspend or revoke a business license.
The Court stated first that under the Arizona state law, a superior court judge hearing
a case of unauthorized employment was not restricted in the type of evidence it could consider,
thus providing at the state hearing level all necessary due process protections. Although unfavorable result of a computerized
check under e-Verify created a presumption against employment status, it was rebuttable, and an employer could introduce
evidence in a state court proceeding to
show the worker was in fact authorized or the employer lacked knowledge of the unlawful status, either of which was a valid defense.
Secondly, even if the state court
were bound by the results of e-Verify, procedures for employees to straighten out a non-verification result by contesting it
and working with the agency to correct it, also met the requirements of due process. Therefore, the procedural due process
arguments used by the Plaintiffs to attack the Arizona state law as unconstitutional on its face were not well-taken, and
were overruled.
The Court suggested without deciding that federal law may allow an employee to contest a final
non-confirmation determination obtained with e-Verify by invoking the provisions of the federal administrative procedures act.
On February 20, 2008, the Court entered a supplemental order refusing to stay enforcement of the law pending appeal of the
second suit dismissal, as requested by the plaintiffs. The Court held that
the plaintiff business, immigration and civil rights groups had not established a likelihood that they would win on appeal and
ruled that such an injunction would undermine the results obtained so far from the employers sanction law. The judge's order in its entirety can be viewed
here. The Plaintiffs appealed to the United States
Court of Appeals for the Ninth Circuit, but the appellate court denied both a
temporary order pending appellate review on February 28, 2008, and relief on the merits on September 17, 2008.
In the ruling on the merits, the Ninth Circuit stated that the Arizona law was constitutional on its face (that is, in theory) but
left open any future ruling on how it might be enforced (in practice).
- Missouri city ordinance litigation
Though not technically a ruling over the mandatory use of e-verify, the U.S. District Court for the Eastern District of Missouri upheld
city ordinances that invoked licensing powers over illegal immigration and provided a safe harbor for employers who obtained
employment verification through e-Verify, citing the Arizona's district courts earlier rulings, and
using many of the same reasons that were later advanced by the Arizona
federal district court in its February 7, 2008 decision on a state's employer sanctions law. Read the Missouri opinion itself here.
- California Federal No-Match Rule Litigation
By Complaint dated August 28, 2007, a coalition of immigration advocacy, civil rights, and union attorneys filed a complaint
seeking a federal court order prohibiting enforcement of the 2007 SSA/ DHS No-Match Rule,
which by its terms would require employers who received a notice of a mis-match between submitted W-2 or employment authorization
forms and government database records
to require corrective actions of employees within a three month period or be treated as having hired unauthorized workers thereafter under
federal law, exposing the employers to monetary sanctions. The U.S. District Court for the Northern District of California issued
a temporary restraining order and a
preliminary injunction. While this is not technically a final ruling on the merits,
the preliminary injunction bars enforcement nationwide of the 2007 SSA/ DHS No-Match Rule and subsequent amendments to it.
( (View the text of a March 2008 SSA No Match Proposed Rule here.)
The SSA has announced that it will continue not to send SSA No-Match letters until the California litigation is resolved.
- Federal Litigation over Illinois' Law Prohibiting Use of E-Verify until certain conditions are met.
On September 25, 2007, the Department of Homeland Security sued the State of Illinois in federal court to prevent
enforcement of a state law prohibiting employers
from using the E-Verify system, until certain performance levels are reached or the
program becomes federally mandated. View a copy of the complaint here. Illinois
stipulated not to enforce the law until the litigation was resolved.
On March 12, 2009, the Federal District Court for the Central District of Illinois ruled the Illinois state law
invalid under the Supremacy Clause of the U.S. Constitution. View a copy of the decision here.
- Maryland Contractor Federal Litigation
On December 23, 2008, the National Chamber of Commerce with other entities filed suit in the Maryland Federal District Court challenging new regulations that require government contractors to verify and reverify employees involved in
certain federal government contract work. View a copy of the complaint here.
According to the American Immigration Lawyer's Association, the U.S. Department of Justice has preliminary agreed to suspend enforcement of
the rule from the anticipated date of January 15, 2009 to February 20, 2009, presumably
to allow for court consideration of the lawsuit and/or possible reconsideration
by the new Administration.
New (8/25/09): On August 25, 2009, Judge Alexander Williams of the U.S. District Court for Maryland dismissed the suit, holding that there was no legal or
factual issue for trial. The Court held that a Presidential Executive Order required use of e-Verify for federal procurement purposes and no
contractor was required to use the system. It could simply refrain from seeking federal contracts. Furthermore, nothing in immigration
statutes enacted by Congress prevented the President from enacting an Executive Order that required the use of e-Verify by government
contractors.View a copy of the full decision here.
The court ruling paves the way for the entry in force of a federal rule on the use of e-Verify by federal contractors, which had been delayed
since January because of the pending case. The rule implements an executive order originally enacted by the previous administration that
mandates contractor use the system to verify employment status on federal government procured work. View more information
about E-Verify.
Common themes in all suits are whether E-Verify is accurate and reliable, and the extent to which the federal
government and the various states can regulate immigration and employment relations within the United States.