May 29, 2011

Immigration Crackdown: Supreme Court ruling raises employer fears

Immigration law ruling raises employer fears | Business Insurance: "A U.S. Supreme Court decision upholding an Arizona immigration law could result in employers facing a patchwork of onerous anti-immigration laws unless Congress decides to take action, attorneys say.

Furthermore, the court's 5-3 decision last week in Chamber of Commerce of the United States of America et al. vs. Michael B. Whiting et al. gives implicit approval to a sometimes unreliable federal immigration verification system, which also can cause problems for employers, observers say....

In ruling on the Arizona law, the high court said the 1986 Immigration Reform and Control Act expressly pre-empts “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment unauthorized aliens.”

According to the opinion, the U.S. Chamber of Commerce had argued “that the Arizona law's provisions allowing the suspension and revocation of business licenses for employing unauthorized aliens were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly pre-empted.”

But the Supreme Court disagreed. The majority said the Washington-based Chamber of Commerce “and the United States as amicus argue the Arizona law is not a "licensing' law because it operates only to suspend and revoke licenses rather than to grant them.” However, the high court ruled, “this is contrary to the definition that Congress itself has codified....It is also contrary to common sense. There is no basis in law, fact or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses (is) something else altogether.”

Arizona's procedures “simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws,” the majority ruled, saying the state “went the extra mile in ensuring its law closely tracks (the Immigration Reform and Control Act's) provisions in all material definitions....

Observers say one major concern is the ruling's implicit endorsement of E-Verify, which is a voluntary federal system, but mandated by Arizona law. Mississippi, Utah and Virginia also have such a mandate, according to the ruling.

John Doran, a shareholder with Greenberg Traurig L.L.P. in Phoenix, said, “The obligations that are required under Arizona law, including a mandatory use of E-Verify, create significant burdens for employers and, frankly, you wonder if all of a sudden, you have a national E-Verify mandate” as a result of the ruling.

Observers say the E-Verify system is flawed and prone to error.”


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