Turf war: States battle feds over regulation of illegal immigration

KANSAS EMPLOYMENT LAW LETTER
Foulston Siefkin LLP
JULY 2009

The U.S. Court of Appeals for the Tenth Circuit, which covers Kansas as well as Oklahoma, will soon decide the validity of an Oklahoma law requiring some employers to use the E-Verify system to confirm new employees' eligibility to work in the United States.

The court's decision not only will affect employers that do business in Oklahoma, but it may also affect similar laws in other states.

States respond to federal inaction

Illegal immigration has always been a hot-button issue in the United States.

In the last 30 years, the federal government has struggled to control the southern U.S. border, leading to the implementation of the I-9 rules currently in place. The debate has grown even hotter in the last decade.

Congress continues to consider possible solutions to the problem, but its failure to enact comprehensive immigration reform has left state and local governments frustrated.

As a result, some states have taken measures into their own hands. Several states now require employers to check new employees' work authorization documents using the E-Verify database.

As part of that trend, Oklahoma passed the Oklahoma Taxpayer and Citizen Protection Act of 2007, which requires every public employer as well as all contractors and subcontractors who contract with a public employer to use E-Verify to check new employees' work eligibility. The provisions were slated to go into effect July 1, 2008.

State laws challenged

A group of business associations and chambers of commerce went to court to block the law. An Oklahoma federal district court granted their request for a preliminary injunction, which suspended implementation of the law.

The court ruled that enforcing the challenged provisions could put employers in the impossible situation of having to choose between complying with either the federal or the state law, which have conflicting requirements. Chamber of Commerce of the United States v. Henry, No. CIV-08-109-C, 2008 WL 2329164 (W.D. Okla., June 4, 200.

The district court's decision was appealed to the Tenth Circuit, which will now have to determine whether Congress meant to preempt the field of immigration regulation or whether states can impose their own requirements regarding work eligibility.

The Tenth Circuit isn't the first federal appellate court to deal with a challenge to a state law requiring use of E-Verify. Last year, the Ninth Circuit upheld Arizona's E-Verify law.

The Arizona law is even stricter than Oklahoma's, requiring all employers to use the system to verify employee authorization documents.

The Oklahoma case has implications beyond the state of Oklahoma.

The decision may determine whether other states in the circuit, including Kansas, can enact laws requiring you to electronically verify employee authorization documents.

Two other states in the circuit, Colorado and Utah, already have E-Verify statutes, and the upcoming decision could affect those laws as well.

Bottom line

During this period of uncertainty surrounding work authorization issues, be careful to check and comply with E-Verify requirements for each state in which you do business.

Different states' approaches vary significantly. Some states, like Arizona, require all employers to use E-Verify. Others, like Oklahoma, require only certain employers to use the system.

But Illinois has a law prohibiting the use of E-Verify within the state. (Its law is also the subject of legal challenge and is not presently being enforced.)

So if you plan to expand your business to a new state, or if you are unsure about the ever-changing requirements or prohibitions in the states where you already do business, consult with experienced legal counsel to ensure you are in compliance.

Don Berner is a partner with Foulston Siefkin LLP. His practice includes assisting employers and their employees with immigration law issues.

If you have any questions about this article, E-Verify, or immigration law in general, you can contact him at dberner@foulston.com or (316) 291-9738.

Anne Gepford is a law student at the University of Kansas. She is a summer associate with Foulston Siefkin LLP.

What is E-Verify?

E-Verify is a free, Internet-based system operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration that allows participating employers to electronically verify the legal status of their newly hired employees to work in the United States.

The U.S. Citizenship and Immigration Services (USCIS), the government agency that oversees immigration, describes E-Verify as "the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers."

The USCIS claims E-Verify is a quick and easy way to reduce unauthorized employment, protects civil liberties and employee privacy, and minimizes verification-related discrimination.

Proponents of E-Verify say that preventing unauthorized employment will reduce the number of illegal aliens entering the United States.

With the U.S. economy struggling, more and more people believe verification requirements will help solve the problem of illegal immigration and job loss for U.S. workers.

Opponents argue that the program is fraught with problems.

A DHS report found that the system falsely rejected three percent of foreign-born workers, compared to 0.1 percent of U.S.-born workers, increasing the potential for discrimination against foreign-born employees. There is also the risk that employers will illegally use the system to check job applicants rather than new hires.

Additionally, E-Verify doesn't prevent individuals from obtaining fraudulent identification to get work authorization. In fact, critics claim that widespread use of the system could lead to even higher levels of identity theft based on the need for unauthorized workers to obtain better documentation to thwart the process.

Moreover, opponents contend that the additional costs associated with state- mandated use of E-Verify, while individually small, would further burden businesses, particularly small businesses, during an economic downturn.

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