E-Verify Mandate Likely After SCOTUS Whiting Decision – A Legal Reader


For your reference, here’s a look at what lawyers are writing about the May 26, 2011, Supreme Court Whiting decision to do with Arizona immigration law and mandatory E-Verify participation. The case has implications for employers in other states:

Supreme Court Decision Clears The Way For States To Mandate E-Verify

From law firm Miler & Martin PLLC: “On Thursday, May 26, the Supreme Court of the United States upheld an
Arizona law that makes employer participation in E Verify mandatory and
which provides for the revocation of business licenses for employers
that employ unauthorized workers. Georgia, Tennessee, and a number of
other states have recently enacted similar laws, and the Supreme
Court’s ruling eliminates the primary challenge to the enforceability
of those laws. In other words, it is now much more likely that the
various employment-authorization mandates being imposed on employers in
Georgia, Tennessee, and other states will take effect and apply to
employers within those states
…” Read entire update>>

U.S. Supreme Court Upholds Arizona’s E-Verify Law and Penalty Provisions for Employing Unauthorized Workers

From law firm Fisher & Phillips LLP: “In July 2007, Arizona enacted the Legal Arizona Workers Act, which
prohibits Arizona employers from knowingly or intentionally employing
individuals unauthorized to work in the U.S. Under the Act, any person
may submit a complaint alleging that an employer employs unauthorized
workers. Once the complaint is investigated and determined not to be
false, the state will initiate legal action against the employer.
During the court proceeding, the state is limited to the federal
government’s determination of the employee’s lawful status. If the
employer is found to have knowingly or intentionally hired a person
unauthorized to work in the U.S., the Act permits the court to impose
various penalties including the suspension of its license to operate a
business in the state of Arizona.

After the Act was passed in 2007, a group of business organizations, including the U.S. Chamber of Commerce, filed a complaint in Federal Court challenging the Act on the grounds that the Act was expressly preempted by federal law, specifically the Immigration Reform and Control Act of 1986 (“IRCA”)….” Read entire update>>

Supreme Court Immigration Decision Means “Patchwork Regulation” For Employers

From law firm Constangy, Brooks & Smith LLP: “The U.S. Supreme Court’s recent decision in Chamber of Commerce of the
United States v. Whiting
, which upheld an Arizona statute that
sanctioned employers for knowingly or intentionally employing
unauthorized aliens, means that employers with multi-state operations
will have to conform to a patchwork of laws rather than a single,
uniform federal standard …now that the legal hurdles have been lifted, more states will be encouraged to pass laws similar to Arizona’s, imposing compliance burdens on companies operating in multiple states.” Read entire update>>

Supreme Court Approves E-Verify Mandate

From immigration attorney Ronald Shapiro: “Chief Justice Roberts, writing the opinion for a 5-3 majority in Chamber of Commerce v. Whiting, asserted that the Arizona law was consistent with the federal Immigration Reform and Control Act provisions allowing states to impose immigration sanctions related to business “licensing and permitting.” He also noted that the Arizona law exactly tracked the federal definition of “unauthorized alien” and was in other ways crafted not to contradict or supplement federal immigration law, which is the exclusive province of the U.S. government.

Roberts also rejected arguments that the law imposed a kind of “business death penalty” on potentially inadvertent mistakes, noting that the law provides first-time offenders with lenient breaks and reserves its harshest penalties for deliberate repeat offenders.” Read entire update>> 

U.S. Supreme Court Upholds Arizona Law Sanctioning Employers for Hiring Unauthorized (Illegal) Aliens

From Davis Wright Tremaine LLP: “…it is quite likely, perhaps probable, that Alaska and other Pacific Region states will see comparable measures enacted at either the state or local level. Suggested next steps for Alaskan and other Pacific Region employers:

Businesses that operate in more than one state should be sure that they update their hiring procedures to reflect local requirements.

In anticipation of similar measures being introduced in Alaska and other Pacific Region states, employers should self-audit to make sure that their I-9 procedures comply with all legal requirements.

Employers not already using E-Verify may wish to review the system and familiarize themselves with its features…” Read entire update>>
Supreme Court Upholds Arizona Law On Illegal Immigration

From Foley Hoag LLP: “”The majority’s decision in Whiting means that under the rubric of licensing laws, a state may restrict an employers ability to transact business there as a sanction for employing unauthorized aliens. As noted by Justice Sotomayor in her dissent, employers may be subjected to a patchwork of enforcement schemes wherever they do business. At least ten other states (Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia, Georgia, and Utah) have passed laws similar to that of Arizona, and the decision may encourage other states to do the same.” Read entire update>>

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