The high cost of low-cost workers: Missouri enacts new law targeting employers of unauthorized workers.

• Author: Barnett, Michael B.
• Position: NOTES

1. INTRODUCTION

   There are approximately twelve million unauthorized aliens in the United States. (1) Nearly eight million of these individuals are workers, and they account for approximately 5% of the total civilian labor force. (2) This problem is worsening: the number of unauthorized residents has doubled since 1996. (3) Indeed, explosive growth of illegal immigrants led congress to attempt comprehensive immigration reform in both 2006 and 2007. (4) Both tries ended without success.

   In the face of Congress's failure to stem the tide of illegal immigration, many states and municipalities have taken action themselves. Many of these efforts have aimed at the magnet that draws these individuals to America--employment. (5) one of the most common state-level reforms has focused on the expansion of mandatory employer participation in the federal E-Verify program--the federal program that allows employers to verify the residency status of new hires. (6) Missouri is among the states that have adopted such a provision. The enactment of new state laws relating to immigration has resulted in lawsuits in several jurisdictions challenging the states' power to make use of E-Verify mandatory for employers and even contesting their power to legislate in the field of immigration. These suits have had only limited success. This note seeks to explain Missouri's enactment of a law requiring use of E-Verify by certain employers, track recent developments that have made it more difficult to employ unauthorized workers, and advocate the position that this legislation will be upheld in the face of legal challenges.

   The following Section addresses federal immigration law and the subsequent creation of the E-Verify program. It also examines Missouri's recent enactment that requires some employers to enroll in the E-Verify program and provides stiff penalties for any entity that employs unauthorized workers. Section III considers recent cases out of Arizona, Oklahoma, and Missouri that have decided whether the type of statute adopted by Missouri is preempted by federal law, or otherwise not allowed. Finally, in Section IV, this Article contends that Missouri's law will stand up to constitutional scrutiny. Specifically, the case law from other jurisdictions indicates courts are willing to allow states to regulate aliens (rather than immigration) to the extent the regulation is done in a traditional area of state control, like employment.

2. LEGAL BACKGROUND

   The power to regulate legal migration into the United States is clearly vested in the federal government by the Constitution. (7) However, the Supreme Court of the United States has never interpreted the grant of power in the Constitution to preempt every state statute dealing with aliens. (8) When the Constitution does not expressly limit a field of legislation to federal authority, state power may typically be exercised through traditional state police powers such as "regulat[ion of] the employment relationship." (9) Yet recently Congress has legislated in the intersection of these fields--immigration and employment--in an effort to provide a uniform law aimed at preventing employers from hiring, and often exploiting, unauthorized workers. (10)

   1. Immigration Reform and Control Act of 1986

      The first major law to tackle illegal immigration enforcement by penalizing the employer was the Immigration Reform and Control Act of 1986 (IRCA). (11) The law made it illegal "to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien." (12) To assist employers in the verification of employees' work status, Congress devised a system based on a list of documents that would verify both an employee's identity and his or her employment authorization. (13) The program, commonly known as the I-9 system, requires all employers to fill out a form and retain a copy for their records. (14) Failure to comply with the I-9 system may result in civil penalties and, upon a finding of a pattern of violations, criminal sanctions against employers. (15) If prosecuted, any entity that establishes good faith compliance with the I-9 process has an affirmative defense that it did not knowingly employ an unauthorized worker in violation of IRCA. (16)

      The IRCA was meant to be a comprehensive immigration law, and it expressly preempts all state or local laws that impose criminal or civil penalties for violations of acts covered by it. (17) However, the statute specifically excludes "licensing and similar laws" from the statutory preemption (18) and therefore does not preempt every state law dealing with aliens. Since no definition of "licensing and similar laws" is provided, however, a significant amount of litigation has attempted to determine which state and local laws fall under the savings clause and avoid preemption. (19)

   2. E-Verify

      The I-9 program's success in deterring the employment of unauthorized workers proved to be underwhelming. To remedy its shortcomings, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (20) The IIRIRA sought to complement the IRCA's I-9 system through the development of three pilot programs that aimed to improve the verification process. (21) The goal was to reduce "(1) false claims of U.S. citizenship and document fraud, (2) discrimination against employees, (3) violations of civil liberties and privacy, and (4) the burden on employers to verify employees' work eligibility." (22) The only program still in use is E-Verify. (23)

      E-Verify is a voluntary, web-based system that allows employers to compare information given by newly hired employees on their I-9 forms to Social Security Administration (SSA) and Department of Homeland Security (DHS) databases containing more than five hundred million records. (24)

      To verify a new employee's status, employers log onto the web-based system within three days of hiring the employee and input the employee's information. (25) The program then compares the provided name and social security number to the SSA's database to see if a match exists. (26) If it does, the employer is immediately notified that the verification was successful. (27) If a match cannot be found immediately, then the next steps taken under the program depend on whether the new employee is a U.S. citizen. (28)

      For an individual that cannot be matched and claims to be a U.S. citizen, the SSA issues a "tentative nonconfirmation" of legal employment status, and the employer must relay the notification to the affected employee. (29) The employee then has eight days to visit the local SSA office to initiate an attempt to resolve any inaccuracy in the records that could result in a confirmation of his or her positive employment status. (30) No negative employment actions may be taken against the employee during this appeal period. (31) If the tentative nonconfirmation is not challenged within eight days, the employer receives a "final nonconfirmation" from the SSA. (32) After receipt of the final nonconfirmation, the employer must terminate the employee or notify DHS of intent to continue employment. (33)

      If a non-citizen employee's information does not match the SSA's records, the entered data is compared to DHS databases, including information from U.S. Citizenship and Immigration Services (USCIS). (34) A failure by the DHS databases to resolve the problem prompts a referral to an immigration status verifier who works for USCIS. (35) If this individual cannot otherwise verify the worker's authorized status, DHS issues a "tentative nonconfirmation" that must be given to the employee by his or her employer. (36) The employee then has eight days to contact DHS and begin the process to resolve the dispute. (37) Again, before resolution of the issue, employers are prohibited from taking any adverse actions against the employee. (38) The failure to contest a negative finding within eight days, or an unsuccessful attempt to resolve the tentative nonconfirmation, causes a final nonconfirmation to be sent to the employer with the same effect as one from the SSA. (39) A match at any point, in either process, results in a confirmation being sent to the employer, which authorizes continued employment of the non-citizen.

      There are three typical reasons E-Verify may not match a prospective employee to information in the databases (commonly referred to as a mismatch). (40) The most likely reason, which occurs in between 3.5% and 5% of all queries, is that the individual is not authorized to work in the United States or chooses not to contest the tentative nonconfirmation. (41) The program was designed and instituted to detect the former, while the latter may be a cause for concern if the person was actually authorized to work. Otherwise, a mis match is statistically most likely to occur because either the individual changed names or citizenship status without notifying (42) the SSA or the employer input the employee's information incorrectly. Overall, 96.1% of queries are authorized within twenty-four hours, and only 0.37% of individuals who are ultimately determined to be work-authorized receive a tentative nonconfirmation. (43)

      The E-Verify program has been undergoing improvements over the last year to answer concerns raised by some commentators. The deficiencies in the program have been well documented by its opponents. (44) Major concerns include high tentative nonconfirmation rates for foreign-born U.S. citizens, identity and document fraud, and employer non-compliance with procedural safeguards. (45)

      Another significant concern of many commentators is that potential widespread use of E-Verify could lead to employers not hiring individuals who "look like immigrants" but are actually authorized workers either because of an increased possibility that extra effort will be required to verify the individual's employment status or due to worries about prosecution and...