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As predicted in my May 2011 blog on the U.S. Supreme Court’s decision upholding Arizona’s E-Verify mandate, several states have followed suit and mandated E-Verify participation.  At the start of this year, E-Verify requirements became effective in Georgia, Louisiana, South Carolina and Tennessee, and all employers in Alabama must implement E-Verify by April 1, 2012.

The number of immigration-related bills introduced across the country in 2011 is astounding.  In 2011 alone, state lawmakers in all fifty states and Puerto Rico introduced over 1,600 immigration-related bills.  Of those bills, as of December 7, 2011, 42 states and Puerto Rico had enacted over 300 new immigration-related laws or resolutions.   

Of most importance to employers and businesses are the states that enacted laws in 2011 regarding E-Verify participation.  According to the National Conference of State Legislatures, 17 states now require E-Verify for public or private employers.   

While this list will not remain current for long, employers operating in at least the following states should pay attention to state E-Verify requirements:

• Alabama (passed in 2011) (effective April 2012)
• Arizona
• Colorado
• Florida (2011)
• Georgia (2011)
• Idaho
• Indiana (2011)
• Louisiana (2011)
• Mississippi
• Missouri
• Nebraska
• North Carolina (2011)
• Oklahoma
• South Carolina (2011)
• Tennessee (2011)
• Utah (2011)
• Virginia (2011)

While many states this year enacted laws requiring E-Verify use, a few states moved in the opposite direction.  In January 2011, Rhode Island repealed a 2008 executive order requiring use of E-Verify.  And, Minnesota’s 2008 executive order requiring some state agencies and contractors to use E-Verify expired in April 2011. 

E-Verify: Georgia

This blog is the first in a series to focus on individual states’ E-Verify requirements.  First up – Georgia. 

Effective January 1, 2012, E-Verify is mandatory for all employers with 500 or more employees in Georgia. (Georgia H.B. 87).  The Georgia law will eventually require all employers with more than 10 employees to use E-Verify.  The law kicks in for employers with 100-499 employees on July 1, 2012, and for those with 11-99 employees on July 1, 2013. 

Similar to those in the Arizona law (Arizona S.B. 1070), the penalties in Georgia include restrictions on the ability to get new or renew business licenses or other required business documents. 

Thursday, the United States Supreme Court upheld (pdf) in a 5-3 vote an Arizona law that mandates employers in that state use E-Verify and revokes business licenses for employers that knowingly hire unauthorized workers. both the Wall Street Journal and USA Today had good coverage of the Court's decision.  Opponents of the Arizona law, including the Obama administration (interestingly, current DHS Secretary Napolitano is the former Arizona governor who, in 2007, signed the Arizona law), argue that state laws imposing sanctions on immigration-related activity trespass on an area of traditional federal oversight.  
 
E-Verify is an Internet-based employment verification system administered by DHS. Under federal law, use of the system is voluntary except for certain federal contractors. The Court , however, held that “[t]he fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing about what the States may do.”   According to the Court, only DHS is precluded from mandating the use of E-Verify.
 
Further, the Court noted that the “consequences of not using E-Verify under the Arizona law are the same as the consequences of not using the system under federal law. In both instances, the only result is that the employer forfeits the otherwise available rebuttable presumption that it complied with the law.”   The Court specifically noted that the Arizona law had since been amended to include other consequences of failing to use E-Verify, but because the suit was brought prior to that amendment, those consequences were not before the Court.  Therefore, the Court’s reasoning leaves open the possibility that if other consequences were imposed by state law, the Court might think differently.  

Because the penalties imposed by the Arizona law involve business licenses, the Court held that the Arizona law meets the licensing exception to federal immigration provisions specifically preempting any state or local law that imposes civil or criminal sanctions on those who employ illegal immigrants.  8 U.S.C. § 1324a(h)(2).  Specifically, the Legal Arizona Workers Act suspends or revokes the business licenses of state employers that knowingly or intentionally employ unauthorized aliens. 

For employers, there is one main difference – penalties imposed at the federal level may include fines, debarment and possible prison time; whereas, the state penalties include revocation of an employer’s business license.  The effects of the state law may be more immediate and severe to an employer.  It may be a death sentence – completely shutting down the business throughout the state.
The Court’s ruling is the first high court challenge to a myriad of state laws recently imposed to crack down on illegal immigration and a victory for those pursuing immigration reform at the state level.  It is likely that many states that have been letting Arizona lead the way, will join in with their own versions of the Arizona law tied to business licenses.

With the Supreme Court’s endorsement, the Arizona law will become the blueprint for other states that wish to mandate the use of E-Verify and also to impose their own set of penalties on employers who knowingly hire unauthorized workers.  Several states have already passed such legislation, but many more are now expected to follow suit.

Another Arizona law that requires police officers to investigate the immigration status of those they suspect are in the county illegally is still pending in lower courts. The effect of yesterday's decision on this law is unclear as the decision was based on a state licensing exception created by relevant federal law. No such exception exists for the exercise of other state powers.

In an April 2009 interview, Secretary of Homeland Security Janet Napolitano sparked a contentious debate when she said: “[W]hen we find illegal workers, yes, appropriate action [will be taken], some of which is criminal, most of which is civil, because crossing the border is not a crime per se.  It is civil.”  Critics blasted Napolitano for suggesting that crossing the border illegally was not a crime.  Confusion in this area persists.

Arizona’s new immigration law brings renewed attention to the criminalization of immigration violations.  One of the law’s provisions (pdf) requires law enforcement, when making a lawful stop, to determine an individual’s immigration status where reasonable suspicion exists that he or she is “unlawfully present” in the United States.  Several of the law’s other provisions indirectly criminalize unlawful presence in the United States.  For example, the law gives law enforcement the authority to make warrantless arrests if probable cause exists that an alien has committed a removable offense.  However, even Arizona’s law enforcement officers are confused about what actions constitute a crime.  

On July 6, 2010, the U.S. Department of Justice sued Arizona on the basis that federal law preempts Arizona’s new law and thus prevents Arizona from enforcing it.  In its complaint (pdf), the Department alleges that the Arizona law effectively criminalizes the unlawful presence of aliens “even in circumstances where the federal government has decided not to impose such penalties.”  In other words, the state’s law applies criminal sanctions for unlawful presence “despite an affirmative choice by Congress not to criminalize unlawful presence.”  As the complaint further explains, under current federal law: (1) the unlawful presence of an alien alone is not criminal—only civil remedies, like removal, come into play, unless other circumstances apply; but (2) unlawful entry into the United States is criminal. 

Indeed, federal law provides for the deportation not prosecution of aliens unlawfully present in the United States (except for those previously denied admission, excluded, deported, or removed).  See 8 U.S.C. §§ 1182(a)(6)(A)(1), 1227(a)(1), 1325(a).  Entering the United States at any time or place other than as designated by immigration officers, however, is a crime, as is eluding inspection or examination by immigration officers, or using false misrepresentation and concealment when entering the United States.  8 U.S.C. § 1325(a).  Technically then, crossing the border alone is not a crime per se, but crossing the border unlawfully is.  That means an individual who enters the United States illegally could face criminal penalties for being here while a person who enters legally but stays in the United States without authorization would face only civil penalties. 

No one said immigration law isn't confusing!

Immigration reform has certainly become a prominent political issue of late.  Its recent thrust into the forefront of political debate is not because Congress or the Obama administration has chosen to put it there, but rather because Arizona felt the need to take action, citing the federal government's lack of enforcement.  Numerous lawsuits have been filed challenging Arizona's new immigration law, and immigration issues took center stage at the National Governors Association meeting over the weekend.  

So what does this mean for employers who are caught in the middle of a heated political debate?  Arizona's law has forced both Republicans and Democrats to focus on immigration issues whether they want to or not.  The debate over immigration reform is being driven largely by public reaction to enforcement measures implemented by states such as Arizona and by the Obama administration through ICE.    

Employers should tread carefully as parties on both sides of the political debate will continue to use enforcement measures, including raids, civil fines, debarment and criminal prosecution to push reform.  Employers, merely pawns in the larger game of chess being played, need to do everything they can to remain off the radar screen and avoid being used as an example in the ongoing political debate.  If they haven’t done so already, employers need to focus on their immigration compliance measures and ensure that their workforce, especially those in their human resources department, are complying with all company policies regarding the employment of unauthorized workers.  As more states weigh in with enforcement measures of their own, employers also need to be cognizant of the various state laws applicable to their workforce.

Most large companies, especially those in industries at which immigration enforcement has been targeted, do not operate in one state alone. Unfortunately, for employers, there is no one-size fits all guidebook to immigration compliance.  Knowing and understanding the complicated federal regulations is no longer sufficient.  At least 32 states have now enacted their own immigration-related laws. Take E-Verify, for example.  To date, at least 17 states have weighed in on the use of E-Verify in some form or another.  Some states require all employees in the state to participate in E-Verify; whereas others only require participation by state employees and contractors.  A few have passed laws prohibiting employers from using E-Verify (most have been challenged and amended). 

Most employers know that Arizona has the most sweeping law, requiring all employers to use E-Verify and that Illinois has gone in the opposite direction – passing the Illinois Right to Privacy in the Workplace Act initially prohibiting employers from using E-Verify, and now, as amended post challenge from DHS, requiring employers to complete an attestation at the time of enrollment confirming they have completed the E-Verify tutorial and posted applicable notices among other requirements. The Illinois law also allows injured employees to file a claim against the employer for violations of the Illinois Human Rights Act.  In addition to Arizona and Illinois, other states that have implemented immigration-related laws include:

• Alabama
• Arkansas
• Colorado
• Connecticut
• Delaware
• Florida
• Georgia
• Hawaii
• Idaho
• Iowa
• Louisiana
• Massachusetts
• Michigan
• Minnesota
• Mississippi
• Missouri
• Nebraska
• Nevada
• New Hampshire
• North Carolina
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• South Carolina
• Tennessee
• Texas
• Utah
• Virginia
• West Virginia

On April 23, 2010, Arizona Governor Jan Brewer signed an immigration bill entitled, “Support Our Law Enforcement and Safe Neighborhoods Act,” (pdf) which among other things, requires state and local law enforcement officials to reasonably attempt to determine the immigration status of a person with whom they have lawful contact and reasonable suspicion that the person is unlawfully present in the United States.  Set aside for a moment the vast controversy that the signing of this bill has stirred up across the nation, and focus on what this law means for employers in Arizona.

The short answer is not much.  Although the new bill amends existing law by providing an entrapment defense to employers facing state and local enforcement of federal immigration law for knowingly or intentionally employing unauthorized aliens, it does very little to change the existing law regarding employers.

The new law will increase the number of employees who may be detained by local and state law enforcement and simply not appear for work.  Realistically, however, since most employers in Arizona have been participating in E-Verify for some time, this effect should be minimal as their employees are not likely to be among those detained under the new law.  Why?  Because the employees are either authorized to work or have obtained excellent identity documents that have already passed muster with the federal government’s system to verify work authorization.  Nevertheless, employers may face a slightly increased risk of investigation as a result of an increased rate of detention of employees under the new law.