In the absence of a comprehensive federal plan to address the problems associated with illegal immigration in this country, more and more states have sought to tackle the issue on their own. Such a piecemeal approach, to what has traditionally been considered a federal issue, has created great uncertainty among the business community, which is now being asked to add enforcement officer to their list of duties. With many franchise systems stretching across state boundaries, keeping up with differing state-level immigration laws presents a considerable challenge to the management and operation of the franchise.
The common conduit of these expanded responsibilities to verify an applicant's immigration status is known as E-Verify. The E-Verify program was created as a voluntary Web-based pilot program to help employers verify the work authorization of new hires. The program is administered by the U.S. Department of Homeland Security in partnership with the Social Security Administration.
A common criticism levied against expanded use of the E-Verify system pertains to overall system accuracy. An evaluation conducted in 2007 by Westat, a well respected research and statistical analysis firm, for DHS found that the accuracy of the E-Verify database had improved substantially. However, considerable work remained on the verification rates of lawful permanent residents and immigrants authorized to work, with only 72 percent and 63 percent receiving immediate confirmation, respectively. Overall, SSA estimates that 4.1 percent, or 17.8 million records, contained discrepancies related to name, date of birth or citizenship status.
Chamber of Commerce of United States of America v. Whiting
On May 26, 2011, the U.S. Supreme Court upheld a 2007 Arizona law that required the use of E-Verify by all Arizona employers, punishable by suspension or revocation of the employer's business license. The Federal Immigration Reform and Control Act of 1986 (IRCA) preempts any state or local law from imposing civil or criminal sanctions upon those who employ, recruit, or refer for employment, unauthorized aliens. An avenue explicitly excluded in the IRCA, however, was state authority to set requirements for business licensing and other similar laws. The Supreme Court, by a 5-3 vote, * found that the language in IRCA did not preempt the state law because it was a business licensing law permissible under IRCA. The ruling also stated that although Congress had made...