Supreme Court Upholds E-Verify Mandate in Arizona: Is Mandatory E-Verify Coming to Illinois?

Contributed by Sara Zorich

On May 26, 2011 in a 5-3 decision, the U.S. Supreme Court upheld that the Legal Arizona Workers Act of 2007’s mandatory E-Verify provision did not conflict with the Immigration Reform and Control Act (“IRCA”) and that the licensing conditions imposed under the law were not preempted by IRCA or federal law.

The court’s decision gives the green light for other states, whom have not already done so, to pass mandatory E-Verify laws so long as the state law fits within the confines of the federal law. Illinois does not currently require employers to use E-Verify and state legislatures have been resistant to the entire concept. Time will tell, but this decision could prompt the introduction of mandatory E-Verify legislation in many other states.

The Legal Arizona Workers Act of 2007 requires that, after hiring an employee, the employer must verify the employee’s employment eligibility through E-Verify. The court held that the Arizona law did not conflict with federal law because the consequences of not using E-Verify under the Arizona law were the same as under federal law – an employer forfeits an otherwise available rebuttable presumption of compliance with immigration laws. Moreover, the court noted that the Arizona law did not expand the rights of the state since the law expressly prohibits state investigators from attempting to independently make a final determination on whether an alien is authorized to work in the U.S. and mandates that any employment verification be done with the federal government.

Furthermore, the Arizona law instructs courts to suspend or revoke the business licenses of in-state employers that knowingly or intentionally employ unauthorized aliens. The Supreme Court held that this provision was within the state’s authority under IRCA and fit within the IRCA savings clause since it did not impose “civil or criminal sanctions” but instead imposed licensing conditions on businesses operating in Arizona.