U.S. Supreme Court Soon to Decide E-Verify Case

The validity of several state E-Verify laws may well be hanging in the balance awaiting a U.S. Supreme Court decision. 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 voluntary for most employers, although employers in certain states (such as Arizona and Mississippi) are required to use the system in addition to completing Form I-9 Employment Eligibility Verification for newly-hired employees. Certain federal government contractors also are required to use E-Verify for new hires and existing employees. As noted in the December 2010 issue of the Immigration E-Authority, the lawsuit contesting the validity of the Legal Arizona Workers Act (LAWA), which requires all Arizona employers to participate in the federal E-Verify system, may soon be decided. Existing E-Verify laws in states such as Mississippi and South Carolina could immediately be impacted as well. Several reports suggest the Court will be deadlocked 4 to 4, with newest Justice Elena Kagan having recused herself. A deadlocked decision would effectively uphold the underlying decision of the Ninth Circuit Court of Appeals which found LAWA to be valid.

In the meantime, U.S. Citizenship and Immigration Services (USCIS) reports that E-Verify is receiving high marks in customer satisfaction. E-Verify participation has grown to 243,000 employers nationwide with 16 million E-Verify queries being run in 2010. A newly released report from the Government Accountability Office (GAO) indicates that E-Verify accuracy has improved, although it also states “the government’s ability to ensure an authorized workforce is limited because E-Verify, like the Form I-9 process on which it is based, is vulnerable to identity fraud.” Without regard to the outcome of the Supreme Court case and growing pains faced by E-Verify, the report also indicates that “USCIS and SSA have taken actions to prepare for a possible mandatory E-Verify implementation.”

More States Consider Arizona-Style Immigration Law

Several states are considering immigration enforcement laws modeled after Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act” (SB 1070). SB 1070’s most controversial provision compels law enforcement officers to verify the legal status of persons reasonably believed to be illegally present in the country. The Arizona law was originally scheduled to take effect on July 28, 2010, but a court injunction delayed implementation pending a determination of the law’s constitutionality.

In the meantime, several states are considering “copycat” laws. The list of states where such laws have been introduced includes Florida, Texas, Kentucky and Mississippi, just to name a few. Passage of such proposals does not appear to be imminent. State legislatures may be awaiting the outcome of SB 1070 litigation, which will determine whether the Arizona law will stand, before finalizing their own law. Stay tuned for more updates on this constantly changing legal environment.

Florida Adds E-Verify, Rhode Island Ends It

In the absence of a comprehensive federal policy, employers are forced to consider whether E-Verify use is required on a state-by-state, and sometimes contract-by-contract, basis. While states like Arizona and Mississippi have passed laws mandating use of E-Verify by all employers, several states have laws or Executive Orders requiring state agencies and certain government contractors to use the system.

In Florida, newly-elected Governor Rick Scott fulfilled a campaign promise immediately upon taking office by issuing Executive Order No. 11-02 which requires state agencies to use E-Verify and to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:

  • All persons employed during the contract term by the contractor to perform employment duties within Florida; and
  • All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.

In Rhode Island, newly-elected Governor Lincoln D. Chafee likewise fulfilled a campaign E-Verify promise. However, his order went in the opposite direction, repealing the so-called Executive Order on E-Verify, which former Governor Donald L. Carcieri had signed into law in March 2008.

Employers, particularly those with multi-state operations or those who contract with federal or state agencies, must continue to monitor the ever-changing maze of E-Verify requirements.