Will the Supreme Courts decision in the Arizona case impact the employment provisions of Alabamas Immigration Law?

There have been many headlines regarding the United States Supreme Court’s decision in Arizona v. U.S .  The question before Alabama employers is what will be the practical impact of this decision on the employment provisions  of Alabama’s immigration law?

Before coming to any conclusions, the Arizona case must be considered in combination with Chamber of Commerce v. Whiting, another recent Supreme Court case.  In Whiting, the Supreme Court upheld Arizona’s mandate that all Arizona employers use E-Verify and upheld Arizona’s authority to impose penalties such as the suspension or revocation of the business licenses of in-state employers that employ unauthorized aliens. The Supreme Court held that “While IRCA [the federal law]  prohibits States from imposing ‘civil or criminal sanctions’ on those who employ unauthorized aliens, it preserves state authority to impose sanctions ’through licensing and similar laws.’” §1324a (h) (2).”    

Remember that under section 15 of Alabama’s immigration law, which remained unchanged after recent amendments to the law, employers are  subject to penalties if they knowingly employ, hire for employment or continue to employ unauthorized workers within Alabama. The penalties for hiring unauthorized aliens range from temporary suspension of business licenses and permits for the first violation to permanent revocation of the business licenses statewide for multiple violations.  Furthermore, employers that are found to have violated the law will have to comply with additional reporting requirements for up to three years after discovery of a violation.  As well, Alabama employers who fail to register and use E-Verify will lose the safe harbor protection with respect to the hiring of employees whose employment authorization has been verified through the program.

So what does this all mean? The Arizona decision makes absolutely clear that the Immigration Reform and Control Act of 1986 (“IRCA”) is a comprehensive framework that covers all aspects of enforcement related to the employment of unauthorized workers. It thus calls into question  the states’ ability to impose any penalties not directly related to “licensing or similar laws” on employers for the hiring of unauthorized workers. However, as Pepper mentioned in an earlier post, even with the sweeping preemption language found in the Arizona decision, the Court does not call into question its earlier decision in the Chamber case. Therefore, some of the sections of Alabama’s immigration law, such as the E-Verify mandate and the penalties imposed against those employers that knowingly hire unauthorized aliens, may likely survive legal challenges.

On the other hand, other employment-related provisions of Alabama’s immigration law  like section 17 that provides a claim for discrimination and wrongful termination and section 16 that disallows a tax deduction for the expense associated with employing unauthorized workers (both of which are currently enjoined by lower courts) may be more likely to be preempted by federal law under the rationale the Supreme Court used in the Arizona decision.

Effects of Arizona v. US Supreme Court Decision on the Mississippi Employment Protection Act

Having just read Arizona v. U.S (June 25, 2012) and having re-read in its light the Mississippi Employment Protection Act, Miss. Code Ann. 71-11-3 (2008), and the Supreme Court’s 2011 Chamber of Commerce v. Whiting opinion, it seems clear that part of Mississippi’s law cannot be enforced and that another part is imperiled, but that Mississippi’s E-Verify mandate still should survive a preemption challenge.

Criminalization of Unlawful Work

Like the Arizona law, Miss. Code Ann. 71-11-3 (8) (c) (i) imposes criminal penalties on an alien who works without USCIS authorization.  The Supreme Court deems that a transgression of Congressional authority because Congress decided to impose only civil penalties.

 

Discrimination Liability

Another section of Mississippi’s law is called fairly into question by the Supreme Court’s majority reasoning.   A state law imposing immigrant hiring penalties upon employers is subject both to express preemption analysis under 8 U.S.C. 1324a (h) (2) and to the sweeping (perhaps ahistorical, see Justice Scalia’s dissent) implied preemption analysis used by Justice Kennedy in holding Arizona law section 5(C) preempted.  Section 1324a (h) (2) permits states to impose on employers of illegals penalties “through licensing and similar laws,” but forbids other “civil or criminal sanctions.”   Miss. Code Ann. 71-11-3 (4) (d) imposes employment discrimination liability on an employer that dismisses an authorized worker while retaining an unauthorized worker.  This would appear to be a preempted civil sanction.

E-Verify Mandate

In Chamber of Commerce v. Whiting (2011), the Supreme Court approved Arizona legislation making immigration law compliance and E-Verify use a condition of state business licenses, due to the preemption carve-out of 8 U.S.C. §  1324a (h) (2).   While the preemption reasoning in this week’s opinion is sweeping, it does not appear to call that 2011 decision into question.   Thus, Mississippi should remain able to enforce its E-Verify mandate for state contractors, a contract being a quasi-license.  And Mississippi employers other than state contractors still face the prospect of business license loss if they employ an illegal alien and have not used E-Verify.

 

President Obama’s announcement of granting Deferred Action to the Dreamers might affect Alabama’s Immigration Law

Many may wonder how President Obama’s recent immigration action might affect Alabama’s immigration law.  First, let’s examine what President Obama did.  President Obama directed the U.S. Department of Homeland Security to grant “deferred action” on a case-by-case basis to certain potential DREAM (“Development, Relief and Education for Alien Minors”) Act beneficiaries.   “Deferred action” means that DHS (or ICE) will not deport or remove, or initiate proceedings to deport or remove, the individual. Those who meet the criteria described below will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization.  Being granted deferred action, however, does not give an alien a path to permanent residence, lawful status, or citizenship.

The following are the minimum criteria these potential DREAM Act beneficiaries will have to meet to benefit from deferred action:

1.) Entered the United States while under the age of 16;

2.)  Continuously resided in the United States for at least five years preceding the of the announcement and are currently present in the United States;

3.)  Currently enrolled in school, graduated from high school, obtained a general education development certificate, or honorably discharged from the Coast Guard or Armed Forces of the United States;

4.)  Not convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

5.)  Not older than 30 years of age.

Now, this is the important part: the period in which these potential DREAMERS are granted deferred action will be considered a period of stay authorized by the Attorney General. In my opinion, during this period they will be considered to be lawfully present in the United States and thus they may be eligible for certain Federal and State benefits, even though they do not have lawful status.

This deferred status may impact the enforcement and application of Alabama’s immigration law because many sections of the law apply only to those who are not lawfully present in the United States. So, for example, those individuals granted deferred action may be permitted to enroll and attend post-secondary education institutions in Alabama, enter into public records transactions with the state (e.g., apply for or renew a driver’s license or business license), and as mentioned above, be eligible for employment.  Time will tell the real impact.

Initial Steps To Respond to a Notice of Inspection by ICE

ICE continues to serve employers with  Notices of Inspection (NOI) and subpoenas that request the production of I-9 forms and other documents. The latest wave of 2000 NOI’s went out within the last couple of weeks and more are scheduled to occur later this year.  Given the possible fines for substantive or uncorrected technical violations on I-9 forms, and the fact that many employers have audited their I-9 forms (through knowledgeable internal or external auditors),  knowing how to respond to a NOI can be critical to mitigating the exposure a company may face.

We recommend that all companies have an established  protocol to handle government subpoenas and inspections, which may include asking for identification from the government official, determining the purpose of the visit, and contacting individuals within the company (e.g., upper management, in-house counsel) to ensure that the companys rights are being protected.

Although an ICE forensic auditor will review the I-9 forms, a NOI is often served by an ICE agent or special agent, who may ask questions at the time the NOI is served.  Do not guess if you don’t know the answer, but simply state that you don’t know, and then direct the agent to someone in management or HR who can provide an answer.

After the ICE agent has left, it is critical that you immediately put together your team that will assist in responding to the NOI (HR, management, legal counsel).  Remember that you only have three business days to produce the I-9s.   You may request an extension of this deadline, but in our experience such requests are often denied.

While every NOI and company are different, here are some of the tasks the team should do:

  1. Read the NOI and accompanying subpoena carefully to determine what is being requested. 
  2. Determine which member of the team will handle which tasks (e.g., pull payroll list, obtain I-9 forms). Organization of payroll rosters and knowledge of retention systems and files are often a big role in this process.
  3. Obtain expertise from experienced legal counsel on how to handle missing I-9s, I-9s that have errors, and other issues that may result in fines or problems.  Proper and careful remediation at this stage is critical, although remediation prior to ICE serving the NOI is much more beneficial.
  4. Carefully prepare the submission to ICE in an organized fashion, including a letter stating what is being produced.
  5. Keep a copy of everything that is being submitted.

Once you have responded to the NOI, you likely will have to wait to hear from ICE as to next steps.  These next steps, which may include a notice of suspect documents or a notice of technical deficincies, must be handled correctly to best mitigate possible fines.

What questions do you have about an ICE NOI?  Put a comment below.

The Most Common Errors Relating to I-9 Forms

After assisting employers in auditing thousands of I-9 forms and in improving their immigration-related policies and practices, I have observed some common errors that employers historically have made.  Some of the process errors or issues include:

  • Failing to properly train those employer representatives who are responsible for ensuring the completion of a timely and properly completed I-9 form.
  • Failing to have a written policy that outlines the responsibilities of appropriate management and human resources relating to immigration compliance.
  • Failing to take precautions to ensure that the employers contractors and subcontractors are complying with their obligations relating to the I-9 form.

Other  errors are related to the completion of the I-9 form itself, which include:

  • Missing I-9s for current employees or for terminated employees during the applicable retention period.  The retention period is three years from date of hire or one year from date of termination, whichever is longer.
  • Using expired I-9 forms.  Employers must ensure they are using the most current version of the I-9 form.
  • Using the Spanish version of the I-9 form, except where it is allowed (Puerto Rico).
  • Completing the I-9 form late.  The employee must complete section 1 of the I-9 form on or before the first date of hire.  The employer must complete section 2 of the I-9 form within three days of the date of hire.
  • Failing to ensure that the employee signs and dates section 1.
  • Accepting documents that are not on the list of acceptable documents.  For example, accepting a hospital-issued birth certificate as a list C document, when only government-issued birth certificates are listed as acceptable birth certificates in  list C.
  • Accepting expired documents, such as an expired passport or drivers license.
  • Failing to write in the hire date.
  • Failing to ensure that the employer representive who examined the original documents signs, dates and completes every portion of section 2.

In sum, attention to detail and a commitment to immigration compliance is the key.  Employers who have historically ignored these issues benefit greatly from obtaining assistance in cleaning up the past as best as possible in accordance with acceptable correction procedures and in creating  an environment of immigration compliance to move forward.  Ive seen it done many times, and employers who do it rest better at night knowing that they will be ready if audited by ICE.