The E-Verify system used by the Department of Homeland Security to electronically verify employment eligibility for new employees. In the past, its use has been voluntary for federal employers; Arizona has now made it mandatory for all employers within the state. Additionally, an Executive Order now makes e-verify mandatory for all new federal employees, including federal contractors and their employees, although existing federal employees and federal contractors are not affected.
In a highly controversial piece of legislation, Arizona made it illegal for employers to “knowingly or intentionally employ unauthorized workers” by implementation of the Legal Arizona Workers Act (LAWA). Those employers who violate this new law may forfeit their business license or have it temporarily suspended, thereby making it impossible for them to conduct business within the state of Arizona.
When this legislation was enacted, several civil rights organizations as well as the U.S. Chamber of Commerce filed a lawsuit against Arizona in an attempt to forestall implementation of this legislation. Their argument was that federal law does not mandate e-verify, therefore a state does not have the right to do so; further, they argued, immigration law is under the jurisdiction of the federal government and should not be regulated by the individual states.
However, these arguments were unsuccessful and the Supreme Court, the Ninth Circuit Court of Appeals and the District Court have ruled that Arizona has the right to enact immigration law within its own borders as long as they are not more lax than federal law.
Several other states have enacted mandatory e-verify legislation for all employers and many more have legislation pending. Other states utilize e-verify for state agencies or state agencies and contractors; many states are beginning to follow Arizona’s lead in aggressively pursuing businesses who employ workers who are not here legally. As a result of the ruling by the Supreme Court, more states are expected to enact legislation similar to that of Arizona.
There are currently five classes of states using the e-verify system:
- States that require e-verify for all employers.
- States that require e-verify for all state agencies and their contractors.
- States that require e-verify solely for state agencies.
- States that have legislation pending for e-verify.
- States that have no legislation and none pending for e-verify.
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