- Federal Litigation over Arizona's law mandating E-Verify
In 2007, Arizona passed a law providing for
suspension and revocation of business licenses of entities that employ
unauthorized aliens. The statute also required employers to verify employees'
immigration status using an online database, called e-Verify. In Chamber
of Commerce v. Whiting, 131 S. Ct. 1968 (2011), the United States Supreme
Court upheld the law against a challenge that federal law preempted
the Arizona statute because "Arizona's procedures simply implement
the sanctions that Congress expressly allowed the States to pursue through
licensing laws." Whiting, 131 S. Ct. at 1971. "Given that
Congress specifically preserved such authority for the States, it stands
to reason that Congress did not intend to prevent the States from using
appropriate tools to exercise that authority." Id. Finally, the
Court noted that Arizona acted in an area of traditional state concern,
finding that "[r]egulating in-state businesses through licensing
laws is not" an area of exclusive federal interest.
The State of Arizona had also won at the preliminary levels of the
federal courts. The District Court judge's order upholding the law can
be viewed here. The
Plaintiffs had 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).
If you are an employer who has questions about verifying the immigration
status of new hires, or are a federal contractor with questions about
new and existing hires and their immigration status, please contact
Messing Law Offices for a free seven minute
telephonic consultation or to schedule an initial consultation.
- 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.
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.
If you are an employer who has questions about verifying the immigration
status of new hires, or are a federal contractor with questions about
new and existing hires and their immigration status, please contact Messing
Law Offices for a free seven minute telephonic consultation or to
schedule an initial consultation.