THE QUAGMIRE OF STATE IMMIGRATION LAWS

Anyone examining state-level employment eligibility verification laws and policies that place additional requirements on government contractors, recipients of government funding, and multistate employers has good reason to confused. For more than 20 years, employers have based employment eligibility policies and procedures around the federal government's “1-9” requirements set forth by the Immigration Reform and Control Act of 1986 (IRCA). Over the last several years, states have begun to create their own schemes and plans to monitor or control the hiring practices of employers. Some now require government contractors to use U.S. Citizenship and Immigration Services' "E-Verify" program, formerly known as the "Basic Pilot" program, to verify their employees' work authorization status. Other states have added an extra level of punishment to employers with improperly hired foreign-national employees. Employers will be as dismayed as Alice as they attempt to map a compliance strategy to bridge the widely varying provisions established by state governments.

Until recently, not many would have imagined the need to examine state-specific employment eligibility verification requirements. Employers needed only to focus on compliance with the familiar federal 1-9 requirements.

Verification and Documentation Requirements

The core statutory requirements covering employment eligibility verification and retention requirements, the antidiscrimination rules, and limitations on use of the 1-9 forms and data are as follows:

■ An employer cannot hire, recruit, or refer for a fee an individual[i] knowing the

person is not authorized to work in the United States.[ii]

■ Employees and employers must comply with employment verification requirements, using the 1-9 form.

■ An employer may not continue to employ an individual in the United States

knowing he or she is (or has become) unauthorized to work.[iii]

■ An employer may not attempt to contract or otherwise agree with another party

to obtain the labor of an individual knowing that he or she is not authorized to work in the United States.[iv]

■ An employer must attest, under the penalty of perjury, that it has verified that an individual is authorized to work in the United States after examining the appropriate documents.[v]

■ Each newly hired employee must attest, under penalty of perjury, he or she is

either: (1) a citizen or national of the United States, (2) a person lawfully admitted for permanent residence, or (3) a person who is otherwise authorized to work in the United States.[vi]

■ An employer complies with federal law if the document or documents presented by the employee reasonably appear to be genuine, and an individual complies if he or she provides a document or combination of documents that reasonably appear to be genuine and meet the 1-9 form requirements.[vii]

■ Federal law limits the use of 1-9 forms, and any information contained therein

or appended thereto, to the enforcement of IRCA and for enforcement of other specific sections of federal law. The 1-9 and its associated information may not be used for any other purpose.[viii]

To a great extent, the associated federal regulations mirror the specific text of the statute. Significant regulations relating to prohibited activities and employment verification procedures are:

■ Employee means an individual who provides services or labor for an employer for wages or other remuneration, but does not mean independent contractors orthose engaged in casual domestic employment.[ix]

■ Employer means a person or entity, including an agent or anyone acting directly or indirectly in the interest thereof, who engages the services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employer means the independent contractor or contractor and not the person or entity using the contract labor.[x]

■ Independent contractor includes individuals or entities that carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis.[xi]

■ Knowing includes not only actual knowledge but also knowledge that may

fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. The regulation contains several examples.[xii]

■ Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. An employer may not request more or

different documents than are required or to refuse honor documents tendered that

on their face reasonably appear to be genuine and to relate to the individual.[xiii]

Anti-Discrimination Provisions—As a counterbalance to the employment eligibility verification procedures, Congress enacted measures to prevent discriminatory treatment against those who "looked or sounded foreign."

■ General rule—It is an unfair immigration-related employment practice for an

employer to discriminate against any individual (other than an "unauthorized alien") with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment because of: (1) an individual's national origin, or (2) a protected individual's citizenship status.[xiv]

■ Document Abuse-—An employer's request, for purposes of satisfying the 1-9

requirements, for more or different documents than are required or refusing to honor documents tendered that on their face reasonably appear to be genuine is treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual.[xv]

Varying Degrees of Madness—State Measures Related to

Employment Eligibility Verification

The following states currently have laws, executive orders, and policies that include state-level employment eligibility verification provisions: Arizona, Arkansas, Colorado, Georgia, Idaho, Illinois, Louisiana, Missouri, Oklahoma, Pennsylvania, Tennessee, Texas, and West Virginia. This list is by no means exhaustive and one should periodically review state law requirements to stay up to date.

As prospects for significant congressional action fade, one can expect efforts further regulating employment eligibility verification to mushroom across the country. The level to which each current or prospective measure imposes additional, conflicting burdens on employers varies from mild to mad. These measures also vary greatly in their triggers for investigations and violations, from those that penalize only employers that have violated federal law, to those that penalize an employer based upon state-based processes, or even penalize employers in the absence of any coherent process at all.[xvi]

Government Contractors

The policy goal of measures affecting government contractors is that state governments should not do business with companies who violate immigration laws Few would disagree with this policy goal, but the measures to ensure this outcome vary.

Minimally Intrusive

Arkansas and Idaho have minimally invasive measures that mildly affect a targeted employer's federal immigration compliance program.

Arkansas' law[xvii] adds conditions to contracts, including subcontracts, for provision of services to the state and covers any person contracting with a state agency for professional, technical, or general services or construction for contracts of $25,000 or greater in value. Contractors may not knowingly employ "illegal immigrants” or knowingly use subcontractors who employ or contract with "illegal immigrants.” There are certification requirements in place for contractors and subcontractors, and contractors are provided with a 60-day cure period for potential violations. Potential penalties are actual damages to the state. Arkansas' law is unique because of the $25,000 threshold and 60-day cure period.

Idaho's Executive Order 2006-40 adds conditions to contracts for provision of services to the state. The order requires a contractor to warrant: (1) it does not knowingly hire or engage any "illegal aliens" or unauthorized workers; and (2) it takes steps to verify work authorization of new hires and otherwise to engage persons authorized to work in the United States. Misrepresentation or employment of unauthorized workers is a material breach and cause for termination. There is some uncertainty as to whether the unknowing employment of an unauthorized worker would trigger sanctions, so the reasonableness of this measure depends upon enforcement.

An affected employer should be able to comply with these measures if it has a solid, basic compliance program in place with respect to its employees and use of subcontractors.

Significantly Intrusive

Colorado and Georgia have intrusive measures that may significantly affect a targeted employer's federal immigration compliance program and require modifications to the 1-9 process.

Colorado's House Bill 06-1343, as amended by House Bill 07-I073,[xviii] requires contractors who provide services to any level of state or local government to use E-Verify to verify the work authorization of all employees newly hired m the United States, in addition, contractors may not knowingly employ "illegal aliens" or knowingly contract with a subcontractor who knowingly employs or contracts with an "illegal alien” to perform work under the contract. Prior to executing a state/local contract for services the contractor must certify: (1) it does not knowingly employ or contract with an “illegal alien"- and (2) it has participated (or attempted to do so) in Basic Pilot/E-Verify to verify the work authorization of all employees newly hired in the United States. If a contractor obtains actual knowledge that a subcontractor has employed "illegal aliens” on the project, it must give the subcontractor three days to prove it has not done so and terminate the relationship if proof is not available. A contractor must provide documentation of its employees' immigration/work authorization status, if requested. Penalties include termination of the contract, actual and consequential damages, and listing of the contractor's name as a violator of state immigration law on the Colorado secretary of state's website for a period of two years.

Georgia's law[xix] includes a phased-in requirement for contractors and subcontractors to register and use E-Verify, based upon size of the employer.[xx] The law covers contractors providing physical performance of services within the state to any level of government.[xxi] Penalties include loss of the contract based upon a presumption of misrepresentation, and loss of the ability to contract with state or local governments.

The questionable aspects of both laws are the extent to which each applies to an employer's operations outside of the state and the legal basis for the right of state government to request or inspect 1-9 forms, in light of IRC A's explicit restrictions.

Missouri and Tennessee have measures that may drastically affect a targeted employer's federal immigration compliance program, and so require special attention.

The Missouri statute[xxii] attempts to authorize state agencies to determine whether a contractor or subcontractor has violated IRCA and to punish contractors. A state agency contracting for the work may make a determination based on "reasonable evidence" that a contractor hired at least one unauthorized worker. If such a determination is made, the agency can attempt to cause the contractor to fire the unauthorized workers. In addition, the agency may withhold up to 20 percent of the total contract. The statute also states if a state agency, based on "reasonable evidence," determines that a contractor has engaged a subcontractor to complete work required by the contract with knowledge that the subcontractor violated or intended to violate IRCA, the state agency may withhold from the contractor up to double the amount caused to be withheld from payments to the subcontractor. A contractor or subcontractor may be barred for up to two years from state contracts for violating this statute. Two of the more troubling aspects of this statute are the ambiguous standard of "reasonable evidence" as applied by any state agency, and punishing a party for intended violations of IRCA.

Missouri Executive Order 07-13[xxiii] adds conditions to contracts for the provision of services to the state. Contractors doing business with the state must make various certifications to the state. They must certify that all current employees are authorized to work in the United States. Future contract holders must certify they do not knowingly employ unauthorized workers. And all contract holders must certify that any employee assigned to perform services under the contract is eligible to work in the United States. The form of certification also requires the ambiguously phrased "use of personnel" will be in accordance with applicable federal and state laws. Penalties include termination of contracts and possible debarment from state contracts.

Given the structural deficiencies within the executive order and the nature of the state's enforcement actions, it is very difficult to discern any set processes or standards. The executive order contains internally inconsistent certification requirements, and the form of certification sent out by the state's Office of Administration for current contractor certification is overly broad in its referece to "use of personnel," which may or may not include subcontractors.

Based on reports of two enforcement actions, the state provides minimal due process in March 2007 in Jefferson City, MO, an enforcement action was taken against a contractor that had been doing business with the state for nearly nine years. On the basis of a rumor, the state contacted ICE to investigate the rumor, which resulted in an ICE raid. The company's contract was immediately terminated. When the contract was terminated, there had been no finding that the employer violated federal law, and there was no belief it violated state law. On October 25, 2007, the contractor filed suit against the Missouri and its governor, alleging wrongful termination of the contracts.[xxiv]

In May 2007, George's Processing, a Butterfield, MO, poultry processing plant, was the subject of an ICE raid. Governor Matt Blunt immediately revoked the employer's contracts and barred it from doing any future business with the state.[xxv] When the contracts were terminated, there had been no charge or finding that the employer violated federal immigration law. Additionally, the state disregarded the rebuttable presumption created by use of E-Verify/Basic Pilot, under which an employer is presumed not to have violated federal law.[xxvi]

The "red flag" affected employers should note is that the Oklahoma law incorrectly lists the Social Security Administration's Social Security Number Verification Service (SSNVS) as a valid means of verifying work authorization.[xxvii] In fact, SSNVS is only to be used to confirm information for payroll purposes, and it is illegal to use it to verify work authorization. No negative employment action can be taken against a worker whose number cannot be verified through SSNVS!

In Tennessee, House Bill 111[xxviii] and Executive Order 41 add conditions to contracts for provision of services and goods to the state or any state entity. Contractors cannot knowingly utilize the services of "illegal immigrants" or of a subcontractor utilizing "illegal immigrants" in the performance of contracts for goods or services. If an affected employer is discovered to have knowingly utilized the services of "illegal immigrants" in performance of the contract, the following penalties apply: (1) the inability to contract or bid on state contracts for one year from date of discovery; and (2) the possible termination of the contract and monetary penalties.[xxix] Contractors must provide an initial attestation that they comply with this law and obtain similar certifications from subcontractors. These certifications must be retained along with semi-annual updates of the attestation for inspection by the state. Contractors must also agree to comply with random state audits, which include the contractors' and subcontractors 'personnel records!

There are maddening aspects of Tennessee’s measures that require special attention. The inclusion of "goods" is uncommon for these types of laws, as it arguably attempts to regulate an employer's activities beyond the state's borders. The utilization of baseless audits is troubling, especially the extension of searches to personnel records.

Minimally Intrusive

Pennsylvania and Texas have minimally invasive measures that mildly affect a targeted employer's federal immigration compliance program.

Pennsylvania House Bill 2319[xxx] prohibits use of "illegal immigrant" labor on a project financed with any state loan or grant money. The Pennsylvania law incorporates a couple of employer-friendly features. One, an employer can attain an "affirmative defense" if: (a) it obtains certification from a contractor that it complies with IRCA, and (b) notifies the federal government if its contractor uses "illegal alien" labor and two, penalties under the law, repayment of grant or loan with penalty interest, only apply if the person is sentenced under federal law for knowingly employing an "illegal alien" on a project using state grant or loan money.

Texas House Bill 1196[xxxi] restricts the granting of public subsidies to employers convicted of more severe violations of federal immigration law. The law applies to the broad spectrum of an employer's business structure, including any business, branch, division, or department of that business that applies for a public subsidy (any public program, benefit, or assistance) from any level of government within the state. An employer is required to certify that it and its affiliates do not and will not knowingly employ an "undocumented worker." Penalties include repayment of the subsidy but are only triggered if the employer is convicted under federal law for criminal or pattern/practice violations.[xxxii]

Colorado and Missouri have measures that may drastically affect a targeted employer’s federal immigration compliance program and require special attention.

Colorado House Bill 06-1001[xxxiii] adds conditions regarding immigration compliance for employers seeking state government money (grants, loans etc.) administered by the Colorado Economic Development Commission. The conditions are: (1) employers must only employ authorized workers and comply with IRCA in order to receive and retain state government money; (2) employersmust provide proof to the state that each employee in the United States is authorized to work in the United States and (3) the commission is granted discretion to verify compliance with IRCA. Penalties include repayment of state money and a bar to receipt of state government money for a period of five years following the date of repayment. The two troubling aspects of this law are the requirements to require proof that an employer's entire U.S. work-force is authorized, and the provision regarding the state's ability to request or inspect

1-9 forms.

Missouri has two measures that are worthy of "Wonderland' status. One is a statute that prohibits employers in receipt of state economic incentives from the knowing' and "negligent" employment of "illegal aliens.”[xxxiv] Affected employers are to provide certification that they only employ authorized workers (no "illegal aliens” ). The statute requires any applicant for such aid to affirm it "employs no illegal aliens.” The penalty for "negligent" violations of the law is a five-year bar to any state aid, unless the employer is a first-time offender and eligible for a waiver of the penalty. For a "knowing" violation, an employer may be subject to criminal prosecution by the Missouri attorney general.

On November 16, 2007, the Missouri Housing Development Commission (MHDC) adopted an I-9 workforce eligibility policy that imposes onerous requirements on developers, general contractors, and subcontractors working on state-assisted projects. These requirements will become a condition to participation in future MHDC loanas to developers of affordable, residential housing and financing provided through the sale of MHDC-issued tax-exempt notes and bonds. Once the state’s MHDC program is up and running, based upon public statements, there are plans to expand this scheme to projects involving any funding from the Missouri Department of Economic Development (DED), which affects an even greater number of employers:

The MHDC 1-9 workforce eligibility policy provides:

■ Developers, general contractors, and subcontractors must use E-Verify and provide written certification of current and future use the system for all new hires

■ Copies of all I-9s of developers, general contractors, and subcontractors must

be maintained on the construction site

■ General contractors must verify the employment eligibility of subcontractors' employees

■ Mandatory notification of multiple law enforcement entities in cases in which

there are "concerns" that unauthorized workers are on a construction site

■ The developer is assigned the burden of proof to show compliance with the

Policy

■ MHDC must be provided with contractors' and subcontractors' 1-9 records,

payroll, benefits, tax, and employee information

The policy's penalty provisions are:

■ Developers, general contractors, and subcontractors may be barred from

MHDC programs for one year to life. This includes the legal entity, key principals, and any individual who had or should have had knowledge of a violation of the policy.

■ Sanctions may also include fines and penalties (including criminal penalties)

set forth by Mo. Rev. Stat. #285.025.

■ In cases involving MHDC tax credits, collection of liquidated damages against

the developer and a bar to approval of new money for a project subject to sanctions above the amounts initially agreed upon.

Employers affected by these measures in Colorado and Missouri clearly have to take into account employment eligibility verification requirements that drastically depart from IRCA.

In an effort to "do something" about illegal immigration, several states have responded with measures that impact every employer within state lines.

Significantly Intrusive Measures

Colorado, again, has an intrusive measure that may significantly affect a targeted employer's federal immigration compliance program and require modifications to the 1-9 process. Colorado's House Bill 06-1017[xxxv] requires the completion of an "Affirmation of Work Status" form[xxxvi] to be completed by every Colorado employer with respect to each new employee within 20 days of hiring the new employee. The law also requires an employer to make copies of the documents used to satisfy the federal government's 1-9 form, even though federal law does not require that copies of such documents be made or retained.[xxxvii] One questionable aspect of this law is that federal law limits the use of I-9 forms, any information contained therein, or appended thereto, to the enforcement of IRCA and other specific sections of federal law.[xxxviii] The form and its associated information may not be used for any other purpose. Another questionable aspect of the law is the fines of $5,000 for a first offense and up to $25,000 for subsequent offenses.

While one may question the incursion Colorado has made into the area of federal immigration law, there are much more onerous laws.

Arizona, Illinois, Louisiana, Tennessee, and West Virginia all have measures that may drastically affect a targeted employer’s federal immigration compliance program. These measures require special attention. Some states have adopted provisions that may well be preempted by federal law, while others have attempted to skirt the contours of IRCA and make the most out of the apparent ambiguity surrounding the preemption exemption “loophole” of INA §274A(h)(2) [8 USC §1324a(h)(2)]:

Preemption. – The provisions of this section [INA § 274A; 8 USC § 1324a] preempt any State or local law imposing civil or criminal sanctions (other than though licensing and similar laws) upon those who employ or recruit or refer for a fee for employment, unauthorized aliens.

Arizona has attempted to take advantage of this provision by requiring employers to comply with a complex, complaint-driven process directed by the attorney general or county attorney.[xxxix] The process involves state and local inquires of the federal government to verify an employee’s work authorization, well after an employer has completed its I-9 process. Penalties include suspending the employer’s business licenses for a first offence and permanently revoking all licenses held by the employer at the employer’s primary place of business for a second offense.[xl] Licenses are defined broadly to include:

Any agency permit, certificate, approval, registration, charter or similar form of authorization that is issued by any agency for the purposes of operating a business in this state.[xli]

Thus, among the licenses to be revoked are articles of incorporation, partnership, any transaction privilege, tax license, or grant of authority to operate a business. The only licenses excluded are professional licenses and those dealing with two critical public resources, the environment and water. The punishment set forth by the statute has been called the “business death penalty.”

Of note, Arizona is the first state to require all employers to use E-Verify,[xlii] although there is no penalty for failing to enroll. Instead, the statute extends a carrot: use of E-Verify provides a rebuttable presumption that the hire decision did not violate the statute.[xliii] Although efforts to stop the implementation of the law failed, the litigation challenging this law continues and the outcome remains uncertain.

Tennessee has taken a similar approach to Arizona, but does not require employers to use E-Verify. Senate Bill 903[xliv] adds a duplicative state requirement that employers may not knowingly employ, recruit, or refer for a fee an "illegal alien" (someone lacking working authorization in the United States). Complaints may come from any state or local agency or associated party with "reason to believe" an employer is in violation of the state's law. The complaint-driven process is directed by the commissioner of labor and workforce development. After notice and a hearing, an employer can be found in violation of the state's law. The penalty for the first offense is suspension of business licenses until employer evidences it no longer employs "illegal aliens." If an employer is found to have violated law within three years of first offense, then employer's business licenses will be suspended for one year. However, the state does offer limited "safe harbor" protection if the employment authorization of the employee in question was confirmed using E-Verify.

There are two questionable aspects of Tennessee's law. One is the duplicative prohibition on employing unauthorized workers. The second is the creation of the state-level processes and penalties in the absence of a federal finding that an employer violated IRCA.

On the other end of the spectrum, Illinois's House Bill 1744[xlv] prohibits employers from using E-Verify until the system reaches an almost impossible performance standard. Interestingly enough, in September 2007, the U.S. Department of Homeland Security (DHS) sued to have the Illinois law struck down on the basis of federal preemption.[xlvi] As of this writing, the State of Illinois and DHS have reached an agreement that the state will not attempt to enforce this law until the conclusion of the lawsuit.[xlvii]

If there were an award for the most perplexing state-level immigration law, the laws of Louisiana and West Virginia would be among the top nominees.

The first runner-up would be Louisiana Senate Bill 753, which creates state-level offenses and penalties for employing unauthorized workers for employers with more than 10 employees. Under this law, employers may not knowingly employ an "undocumented alien." If an agency somehow determines a violation of the law, it may notify the Louisiana attorney general or district attorney of a violation. Also, investigations may be initiated by an agency or by a private party’s written statement. Penalties include the issuance of a “cease and desist” order to end the employment. If failure to comply with an order, and a court subsequently finds a violation of the order, an employer is subject to a fine up to $10,000 and/or suspension or revocation of business licenses.

The winner of the perplexing award would be West Virginia Senate Bill 70.[xlviii] It creates state-level offenses and penalties for employing unauthorized workers, but most critically provides for confinement of employers for violating the state law?[xlix] West Virginia’s law covers any person who employs or seeks to employ an individual within West Virginia.[l] It prohibits an employer from knowingly employing, hiring, recruiting, or referring an unauthorized worker.[li] Additionally, employers must verify a prospective employee’s legal status or authorization to work prior to employing the individual, or “contracting with the individual for employment services.”[lii] Also, in West Virginia’s favor is a provision that subjects employers to state investigations by the labor commissioner, who may be able to request I-9 forms.[liii]

Without a doubt, the centerpiece of West Virginia's law is the penalties

■ For a knowing violation for employing unauthorized workers, the penalties are:

- First offense-fine ranging from $100 to $1,000, per violation

- Second offense-fine ranging from $500 to $5,000, per violation

- Third or subsequent offense – fine ranging from $1,000 to $10,000 per violation and/or confinement in jail for 30 days to one year

- Conviction of a third or subsequent offence – an employer may have its business licenses (state and local) revoked or suspended, after notice and a hearing.

■ The penalties for knowingly providing false records about an employee’s status or work authorization (a misdemeanor) are up to one year of confinement and/or a fine of up to $2,500.

■ The penalties for the knowing and willful sale/transfer of business assets to avoid liability (a misdemeanor) are up to one year of confinement and/or a fine of up to $10,000.

Outlining a compliance strategy to cover measures like Colorado's questionable "affirmation" requirement, Arizona's mandated use of E-Verify, and Illinois's bar against using E-Verify is troubling. Most distressing are the hostile and overly-punitive tactics employed in certain states, where the calling to "do something" far exceeds reason. In these states, ignorance of congressional mandates, like IRCA, and constitutional protections from unreasonable government actions should be cause for great concern.

As more state-level immigration laws are passed, the level of compliance companies face increases, especially for employers with multistate operations. All employers must, without a doubt, continue to follow all federal 1-9 requirements. Additionally, government contractors should identify state-specific requirements and coordinate efforts between human resources, affected managers, and contracting personnel to ensure compliance. Employers receiving any government aid should identify any immigration-related strings that may be attached and identify compliance needs.

ENDNOTES

i. The statute uses the term "alien." INA §274A(a)(l)(A); 8 USC §1324a(a)(l)(A). The term "alien means any person not a citizen or national of the United States.” INA §101(a)(3); 8 USC 6110100(3) In this article, an "alien" in the statutory sense will be referred to as a person or individual, unless he, she, or it entered the United States through the atmosphere via spacecraft.

ii. INA §274A(a)(l)(A); 8 USC §1324a(a)(l)(A).

iii. INA §274A(a)(2); 8 USC §1324a(a)(2).

iv. INA §274A(a)(4); 8 USC §1324a(a)(4).

v. INA §274A(b)(l)(A); 8 USC §1324a(b)(l)(A).

vi. INA §274A(b)(2); 8 USC §1324a(b)(2).

vii. INA §274A(b)(l)(D); 8 USC §1324a(b)(l)(D).

viii. INA §274A(b)(5); 8 USC §1324a(b)(5).

ix. 8 CFR §274a.l(f) (emphasis added).

x. 8 CFR §274a.l(g) (emphasis added).

xi. 8 CFR§274a.l(j).

xii. 8 CFR§274a.l(l).

xiii. 8 CFR§274a.l(7)(2).

xiv. INA §274B(a)(l); 8 USC §1324b(a)(l).

xv. INA §274B(a)(6); 8 USC §1324b(a)(6).

xvi. State or Local Inquiries and Determinations of Employment Authorization—Arizona's and Oklahoma's legislation provides for state determinations about an employee's immigration status. However, both of these states have incorporated a particular section of federal statute, 8 USC §1373, to aid in these determinations. Arizona's law attempts to authorize state officials the power, pursuant to 8 USC §1373, to verify work authorization to determine violations of the employer sanctions law. Ariz. Rev. Stat. §23-212(B). Oklahoma's law is similar in that it claims that 8 USC§1373 delegates an exercise of authority to verify citizenship or immigration status, primarily for purposes of state contractor compliance. H.B. 1804, §7 (Okla. 2007) (codified at Okla. Stat. tit. 25, §1313, applicable to contracts entered into after July 1, 2008).

The text of 8 USC §1373 reads (emphasis added):

(a) In general. Notwithstanding any other provision of Federal, State, or local law, a Federal State or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal State or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State or local government agency seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

The text of this statute suggests two things. One, it does not explicitly authorize a state or local government to take action. Instead, the text suggests that Congress intended to prevent state and local governments from placing limits on their employees from contacting the immigration service. And two, the state or local agency must have legal authority to make a query regarding status for employment authorization purposes. If, for example, Arizona's law is struck by the courts, there would be no explicit authorization for employment authorization queries.

xvii. Ark. Code Ann. §19-11-105.

xviii. Codified at Colo. Rev. Stat. §§8-17.5-101, 8-17.5-102.

xix. Ga SB 529 (2006), available at www.legis.ga.gov/legis/2005_06/fulltext/sb529.htm. Codified at Ga. Code Ann §§13-10-90,13-10-91,16-5-46, 35-2-14,42-4-14, 43-20A-1 to 42-20A-4, and 48-7-21.1.

xx. Ga. Code Ann. §13-10-91.

xxi. See id.

xxii. Mo.Rev. Stat. §8.283.

xxiii. Available at www.gov.mo.gov/eo/2007/eo07_013.htm.

xxiv. "Lawsuit Claims Race Discrimination, Abuse of Power by Blunt," available at www.wibw.com/home/headlines/1080619l.html.

xxv. Governor Cancels Contract with Poultry Plant," available at http://ozarksfirst.com/content/fulltext/?cid= 7704.

xxvi. According to the employer's agreement with the federal government, proper use of the Basic Pilot/E-Verify system should serve as a protection under state and local laws. Specifically, the model E-Verify memorandum of understanding signed by DHS, SSA, and the employer states: noperson or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system. Model E-Verify Memorandum of Understanding, art. 11.0.6(5), available at www.uscis.gov/files/nativedocuments/MOU.pdf. An employer that has adopted use of E-Verify in Missouri could claim this protection in response to any type of state enforcement efforts.

xxvii. Okla. Stat.tit.25, §1312.1.d.

xxviii.Codified at Tenn. Code Ann. §12-4-124.

xxix. Id. §12-4-124(b).

xxx. Codified at 43 Pa. Con. Stat. §§166.1 to 166.5.

xxxi. Available at www capitolstate.tx.us/tlodocs/80mUltext/pdf/HB01196F.pdf. Tins bill was codified at Tex. Gov’t Code§§2264.001 to 2264.101 (but note that two other laws have been codified at those seasons).

xxxii. See INA §274A(f); 8 USC §1324a(f).

xxxiii.Codified at Colo. Rev. Stat. §24-46-105.3.

xxxiv. Mo. Rev. Stat §285.025.

xxxv. Codified at Colo. Rev. Stat. §8-2-122.

xxxvi. The form is available at www.coworkforce.com/lab/AffirmationForm.pdf.

xxxvii. INA §274A(b)(4); 8 USC §1324a(b)(4): Copying of documentation permitted.—Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection.

xxxviii.INA §274A(b)(5); 8 USC §1324a(b)(5)

xxxix. INA §274A(b)(5); 8 USC §1324a(b)(5)

xl. See Ariz. Rev. Stat. Ann. §§23-211 to 23-214, 41-2505.

xli. Id. §23-212(F).

xlii. Id. §23-211(7)(a).

xliii. §23-214.

xliv. Id. §23-212(1).

xlv. Codified at Tenn. Code Ann. §§50-1-101, 50-1-103.

xlvi. Codified at 820 111. Comp. Stat 55/12.

xlvii. The complaint can be accessed at www.dhs.gov/xlibrary/assets/US_v_llinois_Complaint_092407_ to _ File.pdf.

xlviii. Notice for Illinois Employers about E-Verify, www.dhs.gov/ximgtn/programs/gc_l199120920203.shtm.

xlix. Amending W.Va. Code §§21-lB-2, 21-1B-3, and 21-1B-5, and adding W. Va.Code §§21-1B-6, 21-1B-7.

l. Id. §§21-1B-5(a)(3), (b), and (c).

li. Id. §21-1B-2(a).

lii. Id. §21-1B-3(a).

liii. Id. §21-1B-3(b).

liv. Id. §21-1B-3(d).