Arizona Immigration Law, Hiring and a Little U.S. I

by Taylor Korsak

Remember U.S. I?

When the Articles of Confederation benefitted state power, the new states felt like little countries and colonists abhorred the idea of centralized government?

The spirit of ‘76? Come on!

The battle between state government and federal government- one that has been ongoing since the United States’ birth – has zeroed in on hiring.

The most recent and most notable flare up surrounds immigration law – with Arizona being the major proponent – and the 5 – 3 Supreme Court ruling Thursday is considered a victory for those supporters of state level immigration reform.

CNN reports that the Supreme Court has “backed an Arizona law that punishes businesses hiring illegal immigrants.” The opposition, which includes the Obama Administration, says the latest ruling in favor of the reforms “steps on traditional federal oversight over immigration matters.”

In contrast with a more controversial immigration statute, Thursday’s ruling has been referred to as a “judicial warm-up” – one that may set the stage for a statute that could give local police more authority in arresting suspected illegal immigrants; police could check immigration status on the basis of “reasonable suspicion.”

In a statement reported by CNN, Chief Justice John Roberts said, “Arizona has taken the route least likely to cause tension with federal law. It relies solely on the federal government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the federal government’s own system for checking employee status.”

The system, E-Verify, was created by congress as a “voluntary and discretionary” resource but when Arizona passed the Legal Workers Act in 2007, companies became required by law to use the resource and if businesses knowingly or intentionally violate work-eligibility requirements, the state has authority to suspend the business’ license.

Hiring managers may be familiar with a 1986 federal act which limited state power with regards to regulating hiring “unauthorized” workers. The law requires employers check the I-9 immigration form and though “civil and criminal penalties were strengthened,” CNN reports, “businesses making a ‘good faith’ effort to comply with I-9 procedures were generally immune from prosecution.”

A dissenting Justice, Sonia Sotomayer, said in a statement, “Permitting states to make use of E-Verify mandatory improperly puts states in the position of making decisions.”

The lawsuit decided Thursday was filed by the U.S. Chamber of Commerce and supported by civil rights and immigration rights groups as well as the Obama Administration.

In a recent article from HR Magazine on the benefits of automated I-9 verification, author Dave Zielinski notes the shift toward automated systems by HR leaders “amid growing audit activity and high-profile fines levied by U.S. Immigration and Customs Enforcement (ICE).”

For example the articles reports a February government inspection where organizations like Chipotle Mexican Grill and Abercrombie & Fitch were fined substantially for I-9 violations and forced to let go of illegal workers.

Further the article reports how immigration attorneys believe this increase in government audit activities reflects a “shift in focus under the Obama Administration from targeting unauthorized workers to pursuing employers.”

Does this seem like a valid observation on the part of immigration attorneys?

And as hiring managers are increasingly under government scrutiny, is federal oversight enough or should the state take part in enforcement?

Those HR managers still using paper are at a greater risk for an ICE audit gone awry – automated systems like E-Verify which checks applicants against federal records offer a streamlined process with less risk of error.

But then another question is raised: ought the use of a government designed system like E-Verify be mandated as it is in Arizona and directly enforced by the state?

HRIQ is interested in how you process your I-9 forms, your thoughts on the limits of government oversight and your opinions on the politically charged situation in Arizona.

Feel free to share in the comments section below.