OnMay 26, 2011, the U.S. Supreme Court held thatArizonamay suspend and terminate business licenses of employers who are found to willfully employ workers who are not authorized to work in theU.S. The Court also found that the state may require E-Verify as a prerequisite to doing business in the state.
In the 5-3 ruling, the U.S. Supreme Court majority relied on a portion of the 1986 Immigration Reform and Control Act (IRCA) which expressly provided that states and cities could impose criminal or civil sanctions for immigration violations of employers through licensing laws.
The Court also noted that while E-Verify is optional at a national level, the federal statute was silent as to the states’ role and therefore it did not preclude states from imposing a mandatory scheme. The U.S. Supreme Court decision certainly clears the way forArizonato begin aggressive enforcement if it so chooses and opens the door to other states to followArizona.
It should be noted that it would be far easier forArizonato enforce mandatory E-Verify than it would be to determine if an employer is willfully hiring unauthorized workers. The latter is a complex matter that evenU.S.Immigration & Customs Enforcement (ICE) finds challenging. We don’t foresee the State ofArizonaor its municipalities becoming I-9 audit experts. Furthermore, E-Verify is only to be used for new hires unless the employer is a federal contractor.
The most likely impact of this decision forCaliforniabusinesses is that it is going to put pressure on Congress to roll out with mandatory E-Verify nationwide. Otherwise, Congress will likely find that states will continue to create a patch-work of inconsistent rules. Rep. Lamar Smith (R-Texas and Chairman of the House Judiciary Committee) has indicated that he plans to introduce such a bill in the near future. Californiaemployers may want to enroll in E-Verify soon so that they are ahead of the curve and avoid having to scramble to implement it when Congress makes it mandatory.
Critics have complained that E-Verify is not accurate. However, most of those criticisms are out-dated. E-Verify has made enormous strides over the last 3 years. CIS has an army of software developers working full time to continually improve the system. The latest figures show that 99% of all inquiries are now confirmed within minutes. Of the remaining 1%, most are for people that are not work authorized. Of the few that are, the Social Security Administration is more than willing to keep a case open for several months in order to make sure that they do not cause a U.S. worker to be wrongly terminated based on immigration status. The eight-day tentative confirmation period for E-Verify can now be easily tolled by the federal government when the facts warrant it.
Finally, for those clients who are currently not using E-Verify it is clear that the times are changing and at some point the use of E-Verify will be required.