The US Supreme Court has determined in the case of Chamber of Commerce of the United States of America v. Whiting, No. 09-115 (May 26, 2011), that federal immigration law does not preempt the provisions of the Arizona Legal Workers Act that allow or require the suspension or revocation of licenses if an employer knowingly employs an unauthorized alien. The Court has also found that the Act’s requirement that all employers use E-Verify to verify the employment eligibility of newly hired workers is consistent with federal law. E-Verify is the Department of Homeland Security’s free internet-based system that allows employers to verify that employees are authorized to work in the United States. A confirmation of employment authorization through E-Verify creates a rebuttable presumption under both federal and Arizona law that an employer did not knowingly employ an unauthorized alien.

Under federal immigration law, it is “unlawful for a person or other entity… to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” An unauthorized alien is not authorized to be employed in the United States. Employers are required to complete Form I-9, Employment Eligibility Verification, and attest under penalty of perjury that they have reviewed certain documents and verified the work eligibility of the employee. E-Verify uses information obtained in the Form I-9 process and allows the employer to input that information into the internet-based system for confirmation. Under the federal regime, employers who employ unauthorized aliens may be subject to civil and criminal penalties.

A provision in federal immigration law does not allow “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ… unauthorized aliens.” The Court determined that Arizona’s law suspending or revoking licenses if an employer knowingly employs an unauthorized alien falls within this parenthetical (known as a savings clause) and does not otherwise conflict with federal law.

Important to the Court’s analysis was that the Arizona law defined an unauthorized alien consistently with the federal definition and that only a determination by the federal government that an alien was unauthorized could be the basis for further action by Arizona.

A determination by the federal government that an alien was unauthorized would trigger several obligations by the relevant attorney general or county attorney in Arizona who received the initial complaint that an unauthorized alien was working for an employer. Those obligations include notifying Immigration and Customs Enforcement and local law enforcement of the unauthorized alien, and filing an action against the employer in state court. The state court is required to expedite the case, and if the court finds the employer knowingly employed an authorized alien, the state court is required to take certain actions. The state court will “order the employer to terminate the employment of all unauthorized aliens” and order a three year probationary period at the specific business location of the unauthorized worker during which the employer must report the hiring of new employees to the county attorney. The court will also order the employer to file an affidavit that all unauthorized employees in the state have been terminated and that the employer will comply with the law by not intentionally or knowingly employing any unauthorized alien in the state. The employer’s licenses specific to the business location where the unauthorized alien worked will be suspended if the affidavit is not filed within 3 business days of the court order. The licenses will be reinstated upon the filing of the affidavit. For a first violation, the Court may also order the suspension of all licenses held by the employer for up to 10 business days. For a second violation, the court will order the permanent revocation of all licenses specific to the business location where the unauthorized alien worked.

The Supreme Court’s decision upholding the Arizona state law pertaining to unauthorized workers is expected to trigger a number of copycat laws throughout the country. Already Missouri and South Carolina have similar laws.

If you are interested in additional information, or in learning more about employment eligibility verification requirements, please contact Nancy Noonan, Kristine J. Dunne, Stewart S. Manela, Harry I. Johnson, a member of Arent Fox’s Labor and Employment Group, or the Arent Fox attorney who handles your matters. Thank you.