The U.S. Supreme Court recently upheld an Arizona law which found that states could require the use of the federal government’s “E-Verify” employment verification system in issuing business licenses in that state. In a complex decision, a divided 5-3 Supreme Court found that Arizona’s law did not impinge on the federal government’s sovereignty over immigration because it focused the granting or denial of business licenses, an activity which has traditionally been the responsibility of state governments. As predicted by both proponents and opponents of the Arizona law, many states are already beginning to follow Arizona’s lead now that the Supreme Court has ruled in that state’s favor.
One state which will now be checking up on the immigration status of its workers due to this decision is South Carolina. Shortly after the Supreme Court ruled in the Arizona case, South Carolina governor Nikki Haley sent a letter to Homeland Security Secretary Janet Napolitano (incidentally, a former Arizona governor) asking why the Department of Homeland Security was still refusing to release data from the E-Verify system to South Carolina government officials. This data would be used to more efficiently enforce a state law passed in 2008 authorizing use of the state’s licensing authority to penalize employers that knowingly employ illegal workers. The Department of Homeland Security eventually responded, saying that the “Memorandum of Understanding” that is required to be acknowledged by all E-Verify users now covers the release of E-Verify data to the state of South Carolina. Homeland Security’s statement on the matter also includes a complicated chart detailing what data in the E-Verify system can be legally released by employers.
Many critics of the original Arizona bill warn that the Supreme Court’s decision has now opened up the door for a “patchwork” of state immigration laws: in short, fifty separate nations, all with separate regulations for employing foreign national workers. With the South Carolina law, like the Arizona law, authorizing the state to revoke a business’s license (otherwise known as the “business death penalty”) for employers who are found to have flagrantly violated local restrictions on illegal workers, it is absolutely vital to understand the complexities of the agreement between the Department of Homeland Security and the State of South Carolina. Unfortunately, until the federal government steps in with action to comprehensively reform the U.S. immigration system, the best thing employers can do is seek the aid of qualified advisors in verification compliance to ensure that they are not in danger of receiving the “death penalty” for their own businesses.
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