E-Verify News: AZ Supreme Ct. Decision; PA, MS, AL, GA on E-Verify



Jeff Aleixo

The recent Supreme Court decision on part ofArizona’s immigration law (SB 1070) in Arizona v. United States does not impact the portion of that legislation related to E-Verify, which was decided last year in a separate case heard before the Supreme Court, U.S. Chamber of Commerce v. Whiting (read about it here).

Arizona v. United States is not expected to have a significant impact on Arizona’s business community, since it does not call into question the decision in Whiting that a state could mandate all employers in the state to use E-Verify, and that a state has authority to impose penalties including suspension or revocation of business licenses upon employers discovered to be employing unauthorized workers. Since it specifically declines to call the Whiting decision into question, other states with similar E-Verify / immigration laws can expect that their E-Verify piece will likely hold up (unlike most of the rest of it). Arizonaalso clarifies that 1986’s IRCA legislation is the guide for law enforcement regarding unauthorized workers.

So, the recent Supreme Court decision on Arizona’s immigration law doesn’t mean any change for employers in Arizona regarding E-Verify.

Here’s how Arizona may impact employers in other states:

The E-Verify mandate portion of the Mississippi Employment Protection Act is expected to survive challenges to other portions of the Act. State contractors in Mississippi should expect to adhere to a mandate to use E-Verify. Mississippi employers other than state contractors risk losing their business license if they employ an illegal worker and have not instituted E-Verify.

Similarly, the E-Verify portion of Alabama’s immigration law (and the penalties imposed on employers that knowingly hire unauthorized workers) will likely survive challenges to other portions of that law. The penalties for knowingly hiring illegal workers may include temporary suspension of business licenses and permits, or permanent revocation of statewide business licenses for multiple violations. “Violator employers” will also be subject to additional reporting requirements for up to three years post-discovery of a violation. As in Mississippi, employers who do not voluntarily opt-in to E-Verify will lose their “safe harbor protection” with respect to hiring employees (as opposed to employers who use E-Verify to confirm employment authorization).

Employers in Georgia also risk suspension or revocation of their business license if they fail to comply with their state’s E-Verify requirement. Georgia has a staggered implementation of their E-Verify mandate, based on company size. Effective July 1, 2012, Georgia employers with 100-500 employees were required to use E-Verify. Employers with 11-99 employees are required to use E-Verify by July 1st, 2013.

In other E-Verify news, Pennsylvania recently became the first state in the Northeast to pass E-Verify legislation.

PA will require public works contractors and subcontractors (where the estimated cost of the construction project is at least $25,000) to use E-Verify. Penalties for violation include fines of $250-$1000, warnings, and debarment from working on public projects for a period between 30 days and 3 years. On July 5th, Governor Corbett signed the law into legislation, but it will not go into effect until January 1st, 2013. (Rhode Island previously had E-Verify, but not since January 2011).

Although the first Northeastern state to require E-Verify (for some employers), almost all Southeastern states require E-Verify of all or most employers, including North Carolina, South Carolina, Tennessee, Georgia, Alabama, Mississippi, and Louisiana. Virginia and Florida require E-Verify only for public employers or contractors. In the Northeast (aside from PA), the local municipality of Suffern Village in New York requires new contractors with the village to use E-Verify.

Currently, fewer than half of the states do not have an E-Verify requirement at all, and those states are spread across the Southwest, Northwest, Midwest, and South, with a solid block of E-Verify “resisters” in the Northeast.

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