Regulating Immigration at the State Level: A Focus on Employment

Abstract

In light of the failure of comprehensive immigration reform at the federal level in recent years and in the face of increasing concern about the impact of illegal immigration on local communities, many state, county, and local lawmakers have enacted their own laws and ordinances aimed at the undocumented population and the entities that employ them. Some laws address the employment of undocumented workers by requiring employers to utilize the federal government's Web-based "E-Verify" employment eligibility verification system to verify the work status of new hires. Others prohibit employers from hiring unauthorized workers and punish noncompliance with the denial of business licenses or contracts for work with a state, county, or municipality. Of course, it is already a violation of federal law to employ undocumented non-citizens, so any penalties for these violations are in addition to penalties already set out under federal law. These state laws raise troubling preemption issues that will only be resolved once the Supreme Court weighs in.

Notwithstanding the Obama Administration’s avowed intention to enact legislation to usher in comprehensive immigration reform, there is no sign that the trend toward increased state and local immigration legislation will abate so long as there is a perception that major voids remain in the federal strategy to address illegal immigration. Focusing on employment -- the major magnet attracting undocumented immigrants across our borders -- this article provides an overview of existing state laws that seek to deter the employment of unauthorized immigrant workers and discusses the current status of federal preemption of such laws. These developments must be viewed in the context of the current federal regulatory scheme and federal worksite enforcement trends, as well as the larger history of federal authority over immigration.

Keywords: Immigration, Undocumented Immigrants