In the most important immigration compliance development in some time, the U.S. Supreme Court issued a decision on May 26, 2011 upholding the validity of Arizona’s E-Verify law. The ability of states to require employers to use the federal E-Verify electronic employment eligibility system is now clear. A quick recap of the relevant terms might be helpful:

  • E-Verify is the Internet-based system which allows employers to confirm the employment authorization of employees (see the USCIS website for more information).
  • E-Verify is not a substitute for the normal requirement of completing Form I-9 Employment Eligibility Verification for newly hired employees, but instead an additional step.
  • E-Verify compares the information provided by employees on Form I-9 to information contained in government databases, most notably Social Security records.
  • E-Verify is voluntary for most employers under federal law and, except for certain federal contractors, only can be used to verify the employment eligibility of newly hired employees.
  • E-Verify is mandatory for employers in certain states (Arizona and Mississippi requires it for all employers, South Carolina requires employers to use E-Verify or review a qualifying drivers license, Utah requires businesses with 15 or more employees to use E-Verify or another status verification system, such as the Social Security Number Verification Service, and Georgia will be phasing in a requirement for most employers starting in 2012). Certain federal government contractors also are required to use E-Verify for new hires and existing employees. Several states also have laws or executive orders in place requiring state government contracts to contain clauses requiring private contractors to use E-Verify.
  • The Legal Arizona Workers Act (LAWA) provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.

In the Supreme Court case, the U.S. Chamber of Commerce and various business and civil rights organizations sought to have LAWA’s E-Verify requirement declared unconstitutional as preempted by federal immigration law. In rejecting the Chamber’s argument and upholding the Arizona law, the Court’s opinion indicated that although Congress had made the program voluntary at the national level, it had expressed no intent to prevent states from mandating participation. For more information, see the Ogletree Deakins e-Alert summarizing the decision.