The Supreme Court recently held that provisions in the Legal Arizona Workers Act that require employers to electronically verify employment eligibility through an E-Verify system are not preempted by the Immigration Reform and Control Act (IRCA). IRCA expressly preempts "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." In 2007, Arizona enacted its own law to punish employers for employing unauthorized aliens. In a fractured 5-3 decision (Justice Kagan was recused), the majority concluded that the Arizona law falls within the "savings clause" of IRCA, which exempts from federal preemption any state "licensing and similar laws." According to the Court, the fact that the Arizona law penalizes employers that violate the law by suspending or revoking their articles of incorporation or certificates of partnership makes it a "licensing" or "similar" law, which Congress expressly declined to preempt. On May 13, 2011 and June 23, 2011, Georgia and Louisiana enacted the Illegal Immigration Reform and Enforcement Act and the Louisiana House Bill 646, respectively. These laws are modeled on the E-Verify provision of the Arizona law. The Georgia and Louisiana laws take effect on July 1, 2011 and January 1, 2012, respectively. The ACLU and the National Immigration Law Center have filed a lawsuit in federal court in Georgia to enjoin enforcement of that law.

TIP: Employers in Arizona and, for now, Georgia and Louisiana must enact E-Verify procedures for hiring in order to avoid sanctions under these new immigration laws.