When most employers think about immigration compliance, they usually assume that employment-based immigration is only a federal concern. While many are familiar with federal programs that actually “stand in” for local law enforcement agencies to enforce federal immigration laws, employers are often surprised to learn that many states have found ways to fit in. in the discussion of employment-based immigration. Some states have developed more restrictive protocols, while others have created more protective systems for employees. What does your organization need to know about this standoff and how could it affect your business?
Force the use of E-Verify
Implementing E-Verify in the hiring process is a popular means by which states have become involved in workplace immigration enforcement. E-Verify is an online system that allows employers who have enrolled in the program to confirm the employment eligibility of their employees in the United States. The system uses information from I-9 and records available from the Social Security Administration and the Department of Homeland Security.
E-Verify requirements vary from state to state, which is important to keep in mind if you have locations in multiple states or if you employ workers across the country, particularly as remote working is gaining popularity in the wake of the COVID-19 pandemic. The application of E-Verify requirements may even vary within states that have some sort of verification requirement in place. For example, some states only require E-Verify for certain types of employers or jobs in the state, while others require it for all employers, regardless of the nature of the job.
Although not required by law in all states, it may be a good idea for companies operating in multiple regions to implement E-Verify at all levels. This can ensure consistency across all levels and help avoid the emergence of discriminatory practices or lax location-based standards.
States that require all or most employers to use E-Verify
- North Carolina
- Caroline from the south
States that require E-Verify for public employers and / or contractors with the state
States that require E-Verify for public employers only
States with local municipality E-Verify requirements
- new York
States that require E-Verify for contractors only
Florida joins the ranks
Florida joined the list of states with an E-Verify requirement in January 2021. The state now requires every public employer, as well as contractors and subcontractors working on public projects, to register and start using E -Verify to confirm the eligibility of all. new employees. Private employers are not required to use E-Verify unless they have a contract with a public employer and / or request to receive taxpayer-funded incentives through the Florida Department of Economic Opportunity . In addition to adding E-Verify requirements, Florida has changed the Federal Form I-9 retention rule for private employers if they do not use E-Verify. The federal retention rule requires that I-9 forms, as well as copies of the documents used to complete them, be retained for three years from the date of hire or one year from the date of termination, depending on the last possibility. Private employers who do not use E-Verify must keep copies of documents used to complete Form I-9 for three years.
Federal contractors face electronic verification requirements
Regardless of state requirements, there are situations where federal contractors are required to use E-Verify. Employers with federal contracts or sub-contracts containing the E-Verify clause of the Federal Acquisition Regulation (FAR) are required to use E-Verify to determine the employment eligibility of:
- Employees performing direct and substantial work under these federal contracts; and
- New hires across the organization, whether or not working on a federal contract.
A federal contractor or subcontractor who has a contract with the FAR E-Verify clause also has the option of verifying the entire workforce of the company.
Additional protection for employees
Employers who use E-verify are required to follow the rules of the program, including privacy and non-discrimination protections for employees. But in addition to existing I-9 non-discriminatory requirements, some states have added additional protections for workers.
California, for example, has several protections in place. Unless required by federal law, an employer or a person acting on their behalf is not permitted to give consent to immigration enforcement officers to enter areas of a workplace that are not open to the public, unless the officer has a warrant. Likewise, an officer cannot access, review or obtain employee records without a subpoena or court order (subject to one exception). California employers must also provide current employees with an inspection notice of Form I-9 within 72 hours of receiving the inspection notice and provide affected employees with a copy of the inspection notice. After the inspection, employers must provide a copy of the notice that provides the results of the inspection to affected employees within 72 hours of receipt.
When verifying I-9 eligibility, California employers are prohibited from requesting additional and / or alternative documents to those listed by the federal government. Employers also cannot refuse to honor documents that appear reasonably genuine or based on status or status conditions that accompany the work authorization. Employers are also prohibited from using E-Verify to verify the status of the employment authorization, unless required by federal law, or to recheck the employment eligibility of a current employee. , unless the law allows it. Finally, an employer cannot threaten to contact the government or the police regarding an employee’s immigration status.
In Oregon, employers are required to notify workers with a federal inspection of records or documentation used to identify workers and their eligibility for employment. Employers are also required to notify employees within three business days of receiving the notice, by posting a notice to employees in a prominent place in English and in the language commonly used to communicate with employees. Employers should also attempt to individually distribute the notice to employees in the workers’ preferred language.
Using State Law to Enforce Immigration Compliance
Some states have used state laws regarding identity theft to fit into the discussion about employment immigration. Arizona a few years ago made it a felony for an unauthorized alien to work in the state. In United States v. Arizona, the United States Supreme Court confirmed that the decision to regulate who works and who does not, regardless of immigrant status, rests solely with the federal government, not the state, and struck down that law. In other words, the federal government is the only entity that can restrict employees based on their immigration status.
More recently, in the case of Kansas vs. Garcia, the Supreme Court was asked to decide whether a state could criminally prosecute individuals for the state crime of identity theft when individuals used social security numbers not assigned to them to obtain employment. The defendants in this case used the same social security number for their I-9, W-4, and K-4 (the state equivalent of W-4). Key to the matter: The federal law that governs the I-9 form clearly states that the information in the I-9s cannot be used for any purpose other than those set out in the law. Criminal prosecutions for identity theft under state law are not included. The defense argued that because the defendants used the same Social Security numbers in their I-9s as on other employment-related forms, they could not be prosecuted under state law. .
The State of Kansas argued that just because information was included in an I-9 form, it did not preclude state and local law enforcement from using that information in a criminal prosecution where that same information was contained in other cases, the W-4 and K-4 of the individuals. The Supreme Court sided with Kansas, ruling that because the information in I-9s – names, addresses, email addresses, dates of birth – could be found in other personal documents, the mere fact that an employee’s social security number is contained in an I-9 does not mean that state law enforcement cannot use that information to prosecute defendants for state crimes related to theft of ‘identity.
There is no doubt that immigration law enforcement remains a hot topic and that federalism makes matters even more difficult. State legislatures will remain under pressure to pass legislation requiring the use of E-Verify. States like California and Oregon will no doubt seek additional protections for undocumented workers, while states like Arizona and Kansas will continue to seek ways to target undocumented non-citizens using the laws. States.