Supreme Court Upholds Arizona Law Penalizing Enployers who Employ Unauthorized Workers and Sustains Mandatory Use of E-Verify

The U.S. Supreme Court has upheld an Arizona law which penalizes employers who knowingly employ unauthorized workers by suspending or revoking the employer’s state business licenses, as falling within an exception provided within existing federal immigration legislation. The exception permits states to impose sanctions against such employers through licensing and similar laws.  The court’s decision also permits Arizona to make mandatory the voluntary federal program known as E-Verify.

As background, in 1986, Congress enacted the Immigration Reform and Control Act. This comprehensive legislation created a federal scheme imposing requirements on all employers in the U.S. to make  certifications regarding each new employee and requiring that all future employees prove their identity and work authorization within the first few days of hire, to prevent the employment of unauthorized workers.  Arizona enacted the Legal Arizona Workers Act in 2007 as an additional penalty against employers who knowingly hire unauthorized workers.  Arizona employers who knowingly hire such workers can have their articles of incorporation suspended, or even revoked.  In addition, Arizona required employers within the state to participate in a federal program known as E-Verify.  E-Verify is a federal voluntary, web-based program which the Department of Homeland Security offers to employers to check the work authorized status of new hires.  It is a supplement to existing federal workforce requirements.

The Court held that the Arizona law did no more than impose licensing conditions on businesses operating within Arizona, and was not preempted by the comprehensive 1986 federal legislation.  It further held that while E-Verify was available nation wide, there has been no Congressional intent expressed to prevent a state from requiring participation in the program.  Multiple states have already made participation in E-Verify mandatory for its employers.

*Stewart Rabinowitz is president of Rabinowitz & Rabinowitz, P.C., a Dallas based immigration law firm.