Supreme Court Upholds Arizona E-Verify Law

June 2, 2011 Author: Cindy Kang Ansbach

In Chamber of Commerce of the United States of America v. Whiting, the U.S. Supreme Court issued a 5-3 ruling in favor of upholding the Legal Arizona Workers Act (the “Arizona Act”) which requires all employers doing business in the state to use E-Verify to determine employees’ eligibility to work. To penalize non-compliant employers, the Arizona Act provides that an employer’s license to conduct business in the state may be suspended or revoked for employers who knowingly employ undocumented individuals.

As background, the Immigration Reform and Control Act (“IRCA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) require an employer to review documents establishing an individual’s eligibility for employment. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. In most cases, its use is voluntary, but some companies may be required by state law or federal regulation to use E-Verify. The Arizona Act passed in 2007 requires that “every employer, after hiring an employee, shall verify the employment eligibility of the employee” by using E-Verify. Ultimately, the Court held that the Arizona Act is a licensing law consistent with IRCA and is specifically exempted from preemption as the federal E-Verify law does not restrict state action or use of E-Verify.

The Court did not address other state immigration laws, including Arizona’s SB 1070, which requires police to check the immigration status of individuals in certain instances. Nevertheless, the impact on employers is potentially broad. Although the Arizona Act is currently limited only to Arizona, all employers doing business in the state must participate in E-Verify. Further, other states may soon enact similar statutes, but with specific particular requirements. Such patchwork of state E-Verify requirements can make doing business in more than one state burdensome, expensive and frustrating. In light of possible implementation of similar laws in other states, employers must take caution to properly, thoroughly and accurately complete and abide by Form I-9 requirements.

Questions concerning implementation by Department of Homeland Security, certain exemptions and limitations to the rule and other E-Verify matters may be directed to Cindy Kang Ansbach.

This article was prepared by Cindy Kang Ansbach from Fulbright’s Immigration Practice Group. Should you have any questions concerning the above or any other employment-based immigration matter, please do not hesitate to contact Cindy Kang Ansbach (ckang@fulbright.com or 214 855 7499).