Federal & State Immigration Investigations │ Employment Defense Attorney
Since 2009, the Obama Administration has pursued its goal of focusing immigration enforcement efforts on attacking the demand, rather than the supply, of undocumented aliens. The primary means of achieving their goal has been a decrease in illegal alien roundup efforts and deportation proceedings (a highlight of the previous administration’s enforcement efforts), and an increase in the investigations of American employers.
As many business owners know, the Immigration Reform and Control Act (IRCA) prohibits employers from hiring any employee who is not legally authorized to work in the United States. Employers who are investigated and found to have violated the law face a broad range of potential civil and possibly criminal penalties.
In addition to the increased federal enforcement against employers, various states have begun passing their own laws penalizing businesses found to be in violation of federal law by employing undocumented aliens. Among these states is Arizona, which passed the Legal Arizona Workers Act in 2007. The law calls for the possible suspension or revocation of the state business licenses of employers who knowingly or intentionally employ unauthorized aliens in violation of federal law, and also mandates that all Arizona employers utilize the federal government’s E-Verify system, which is not mandatory for most employers under federal law.
In an important decision recently handed down on May 26th, the United States Supreme Court upheld the validity of the Arizona law, dismissing a challenge to the law brought by the United States Chamber of Commerce, among others. The challengers argued that the state law was preempted by the IRCA and that immigration enforcement is solely the province of the federal government and beyond the reach of the states’ powers. However the Court, in a 5-3 decision, (Justice Kagan took no part in the case) which found the conservative justices in the majority, disagreed, finding that the Arizona law was valid as it fell under an exception within the IRCA allowing states to impose sanctions against employers for immigration violations “through licensing and similar laws.” Since the law addressed violations through the suspension and/or revocation of an employer’s license to do business within the state, the Court found that it was well within Arizona’s power under the IRCA.
It remains to be seen whether the U.S. Supreme Court decision will result in other states passing similar laws addressing enforcement of the IRCA on the state level, or whether similar laws already passed by other states will withstand potential challenges. However, employers in Arizona now face the serious threat of being put out of business as the result of a state-initiated immigration investigation, in addition to the ever present threat of penalties from a federal investigation, making it ever more critical that they comply with the requirements of the IRCA.
Although New York State does not currently have similar legislation in place, all employers in the state are subject to the IRCA’s requirement that employers utilize Form I-9 upon hiring any employee to establish each worker’s employment eligibility. Private employers in New York that do not do business with the government generally are not required to use the E-Verify system, although they may choose to do so voluntarily to further ensure compliance with the IRCA. Employers can get additional information regarding the IRCA and its requirements here.
For assistance addressing employee immigration issues and putting policies and procedures in place to ensure compliance with the Immigration Reform and Control Act requirements, call our law firm at (718) 275-6700 or email us to arrange a consultation to find out how our attorneys can help your business.