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U.S. Supreme Court Asked to Review Arizona's Employer Sanctions Law
In a petition for certiorari, the U.S. Chamber of Commerce asks the U.S. Supreme Court to rule that a 2007 Arizona law that sanctions employers who hire undocumented workers and requires employers within the state to use E-Verify is preempted by federal law. The petition asks the court to decide these issues:
1. Whether an Arizona statute (i.e., the Legal Arizona Workers Act, or LAWA) that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."
2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary.
3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens.
Joined by other business groups, community-based organizations and civil rights groups, the Chamber of Commerce argues that this case involves a question of exceptional national importance: whether state legislatures and municipal governments may override Congress' judgment concerning U.S. immigration policy. The plaintiffs say Supreme Court review is needed to curb the ongoing expansion of "the crazy-quilt of state and local immigration statutes, multiplying burdens on employers and unfairness to employees." They also note that the Arizona statute's reliance on a state determination of immigration status, in the absence of a prior federal adjudication, is an important federal question that affects the scope of federal immigration statutes and regulations. |
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| ICE Launches I-9 Audit Initiative by Issuing 652 Notices of Inspection Nationwide
U.S. Immigration and Customs Enforcement (ICE) recently launched a new Form I-9 audit initiative by issuing notices of inspection (NOIs) to 652 businesses across the United States - more than ICE issued throughout the entire 2008 fiscal year. The notices alert business owners that ICE will be inspecting their employment records to determine whether they are complying with employment-eligibility-verification laws and regulations. The 652 businesses that received the NOIs were chosen as a result of leads and information obtained through other investigative methods. ICE has not released the names and locations of the businesses due to the ongoing nature of the audits.
Last April, ICE introduced a new strategy to reduce the demand for unlawful employment and protect employment opportunities for the nation's lawful workforce. ICE is focusing on auditing and investigating employers suspected of knowingly hiring undocumented workers. The nationwide I-9 audit initiative launched on July 1 is a direct outcome of this new strategy.
An I-9 audit may result in severe penalties for employers who are found to employ undocumented workers. Last month, ICE announced that a $40,000 fine settlement had been reached with the Krispy Kreme Doughnut Corporation for violating immigration laws. ICE conducted an I-9 audit of Krispy Kreme in 2007, after receiving information from the Butler County Sheriff's Office showing that the company had employed dozens of undocumented workers at one of their doughnut factories in Cincinnati. As part of the settlement, Krispy Kreme has taken steps to revise its immigration compliance program, and has agreed to start implementing new procedures to prevent future violations of immigration laws.
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District Court Set to Hear Arguments in Federal Contractor E-Verify Lawsuit
On August 27, the U.S. District Court for the District of Maryland will hold a hearing on a lawsuit challenging an amendment to the Federal Acquisition Regulation (FAR) that would require many federal contractors to participate in the E-Verify employment eligibility verification program. The lawsuit was put on hold for several months while the Obama Administration reviewed the rule. If the court rules in the government's favor, it could clear the way for the regulation to take effect. In early July, the Department of Homeland Security (DHS) announced its plan to implement the rule by September 8, 2009. It is not clear whether the agency intends to implement the rule as originally written or whether it would make revisions.
As currently drafted, the FAR amendment would require federal contracting officials to include a clause in certain federal contracts and solicitations obligating contractors to use the E-Verify program to verify not only the employment eligibility of all new hires, but also of existing employees who will directly perform work under the contract. The E-Verify requirement would apply to federal contracts with a performance period longer than 120 days and a value over $100,000. Service or construction subcontracts of a covered contract would also be required to include the E-Verify clause, if the value of the subcontract is over $3,000. Contracts for items that are commercially available "off the shelf" or that require only minor modifications would be exempt, as would federal contracts for food and agricultural products shipped as bulk cargo and contracts for work performed outside the United States.
The Senate homeland security appropriations bill, which was passed last month, could also affect the implementation of the FAR amendment. The bill includes a provision that would codify the obligation of federal contractors to use E-Verify, without any of the exceptions that exist in the DHS regulation. Were this provision to be enacted, it is not clear whether the Administration would amend the federal contractor E-Verify regulation or issue a new regulation.
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