A Backgrounder on State-Level Immigration Reform – Part One

As I noted in a previous backgrounder, comprehensive immigration reform has been stalled in Congress for years. In the meantime, states have forged ahead, implementing their own reforms. Between 2005 and 2011, state legislatures introduced 8,244 laws and resolutions related to immigrants, of which they enacted 1,700. In the first half of 2013 alone 43 states and the District of Columbia enacted 337 laws and resolutions related to immigration. The laws pertain to a number of subjects, including immigrants’ access to education, public benefits, work, drivers’ licenses, and healthcare.

This two-part backgrounder provides an overview of recent state-level legislation directed specifically at immigrant workers. Because of the scope of the topic and the rapid pace of change in this arena, this backgrounder is not comprehensive, but it does offer a snapshot of the kind of employment-related immigration reforms states are making. Part one of the backgrounder, below, focuses on E-Verify laws.

E-Verify

E-Verify is a federally-managed internet system that enables employers to determine employee eligibility for work by comparing information from workers’ I-9 forms to data in federal (specifically, Homeland Security and the Social Security Administration) databases. The system has been widely criticized for its tendency to sometimes incorrectly label authorized workers as unauthorized. Although E-Verify is optional at the federal level, a number of states have recently mandated its use by all or some employers.

The Supreme Court upheld states’ right to pass such laws in 2011 in Chamber of Commerce v. Whiting. There, the Court held that Arizona’s The Legal Arizona Workers Act, which required all employers to utilize E-Verify, was not preempted by the federal Immigration Reform and Control Act.

E-Verify laws can be grouped into four categories: 1. Laws requiring all or most private employers to utilize E-Verify or an alternative; 2. Laws requiring public employers, states agencies, and/or public contractors and subcontractors to utilize E-Verify or an alternative; 3. Laws requiring public contractors or businesses receiving public funding to certify that they do not and will not employ unauthorized workers (not necessarily through E-Verify); and 4. Laws that limit or prohibit use of E-Verify.

1.     Laws requiring all or most employers to utilize E-Verify or an alternative: Alabama, Arizona, South Carolina, Mississippi, North Carolina, Tennessee, Georgia, and Louisiana.

2.     Laws requiring some or all public employers, states agencies, and/or public contractors and subcontractors to utilize E-Verify or an alternative: Colorado, Florida, Indiana, Idaho, Oklahoma, Pennsylvania, Virginia, Minnesota, Missouri, and Nebraska. West Virginia mandates that new hires on the Capital Complex submit to an employment authorization check via E-Verify. Finally, Michigan requires that certain contractors and subcontractors of the transportation department use E-Verify.

3.     Laws requiring all or some public contractors or businesses receiving public funding to certify that they do not and will not employ unauthorized workers: Idaho, Iowa ,Texas, and Massachusetts.

4.     Laws that limit or prohibit use of E-Verify: A 2011 California law prohibits state and local government from requiring the use of E-Verify “except as required by federal law or as a condition of receiving federal funds.” Illinois prohibits state and local government from requiring not just the use of E-Verify, but any employment eligibility verification system. Illinois additionally legislated privacy and anti-discrimination protections for employees of certain employers utilizing E-Verify.

Other State-Level Immigration Reforms

Although many of the state-level reforms of the past several years have focused on E-Verify, states have also passed a number of other important laws affecting immigrant workers. Part two of this backgrounder, which will be up next week, looks at laws criminalizing work, workers’ compensation laws, and laws regarding employer retaliation.