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Growing Patchwork of State Immigration Laws Add to Employer Compliance Burdens

07.11.11

Traditionally a federal responsibility, immigration reform has become a hot button topic for state lawmakers across the United States. According to the National Conference of State Legislatures, in the first quarter of 2011, state legislators in the 50 states and Puerto Rico introduced 1,538 immigration-related bills and resolutions. This surpassed the first quarter of 2010, when 1,180 bills were introduced.

In particular, state legislatures continue to pass legislation aimed at curtailing the hiring of undocumented workers by requiring employers to utilize the E-Verify program. E-Verify is a web-based system operated by the U.S. Department of Homeland Security (DHS) that allows employers to determine whether their employees are eligible to work in the United States. E-Verify is currently voluntary for all employers, although a growing list of states have passed laws requiring businesses to participate and mandating its use by public employers. Indeed, thus far in 2011, 8 states have enacted legislation requiring employers to enroll and participate in E-Verify, including Alabama, Florida (executive order), Georgia, Indiana, North Carolina, Tennessee, Utah and Virginia.

Currently, 17 states total have laws requiring employers to enroll and participate in E-Verify. The linked document provides a snapshot of states requiring participation in E-Verify.

For multi-state employers, the growing patchwork of state immigration laws requiring participation in E-Verify, coupled with the recent U.S. Supreme Court ruling upholding an Arizona law requiring mandatory use of E-Verify, means that multi-state employers must align their worksite compliance strategy with both the applicable state immigration laws currently in effect in the state(s) in which they operate, as well as with federal immigration laws.

As state legislatures continue to enact E-Verify legislation, employers should expect that more and more states will be encouraged to pass laws regulating the hiring of undocumented workers and mandating the use of E-Verify, thereby imposing additional compliance burdens on employers operating in multiple states.  Between the one-two punch of federal and state immigration laws, employers will face the daunting task of trying to comply with the growing patchwork of laws aimed at curbing illegal immigration.

For more information, please contact Vinh Duong or any member of Waller Lansden’s Labor and Employment practice at 800-487-6380.