United States: Several State Immigration Laws Went Into Effect on Jan. 1, 2010
While there was relatively little legislative action on the state front in 2009 targeting the employment of foreign nationals compared to past years, at least three important state laws affecting employers became effective on January 1, 2010, in the states of South Carolina, Georgia and Illinois. In addition, there were developments in late 2009 in the states of Nebraska and Missouri, and some enforcement of existing laws in Colorado and South Carolina.
There was relatively little legislative action on the state front related to the employment of foreign nationals in 2009, as state legislatures await both the U.S. Supreme Court’s decision on the preemption issue in Chamber of Commerce v. Candelaria (in which the constitutionality of the Legal Arizona Workers Act will be scrutinized) and the outcome of comprehensive immigration reform efforts at the federal level.
However, three state laws that affect companies that employ foreign nationals went into effect on January 1, 2010:
- The South Carolina Illegal Immigration Reform Act law is being implemented in stages. As of January 1, 2010, all state contractors seeking to enter into a services contract with a public employer in the state of South Carolina must either (1) participate in the federal E-Verify program to confirm the employment authorization of all new hires, or (2) only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). By July 1, 2010, all employers in South Carolina will be required to meet the E-Verify/Driver’s License requirement.
- The Georgia Security and Immigration Compliance Act, which was also implemented in stages, became fully effective on July 1, 2009 and requires all state contractors and subcontractors to verify the status of newly hired employees through E-Verify. On January 1, 2010, an amendment to the Act became effective. It provides that no employer or agency or political subdivision shall be subject to lawsuit or liability arising from any act to comply with the E-Verify and work authorization verification requirements set out in the law. Also, once a contractor enters into a contract with a public employer and executes an affidavit of compliance, that affidavit becomes an open public record (except that any information protected from public disclosure under federal law must be redacted). Finally, public employers that are required to participate in E-Verify must post their E-Verify identification number on their website.
- In Illinois, SB 1133 – effective January 1, 2010 – amends The Right to Privacy in the Workplace Act to make it consistent with the federal court decision in United States v. Illinois, which held that the state’s attempt to prohibit employers from enrolling in E-Verify until the program met certain specified benchmarks was unconstitutional. However, the amendment does add language urging employers, prior to voluntarily enrolling in E-Verify, “to consult the Illinois Department of Labor’s website for current information on the accuracy of E-Verify and to review and understand an employer’s legal responsibilities relating to the use of the voluntary E-Verify program.” The law also creates a cause of action for employees, or prospective employees, who believe an employer has failed to abide by the restrictions on use of E-Verify under federal law.
There has also been some recent enforcement of existing state laws in the states of Colorado and South Carolina. In addition, a new E-Verify law in Nebraska took effect on October 1, 2009. Nebraska’s LB 403 requires state contractors to use E-Verify to determine the work eligibility status of new employees physically performing services within the state of Nebraska. Finally, note that Missouri has issued an updated Notice to Vendors (providing that effective September 1, 2009, a vendor’s affidavit of work authorization need only be provided to the public employer on an annual basis) as well as a sample Affidavit of Work Authorization.
Fragomen is closely monitoring immigration law developments at the state level, and will issue additional Client Alerts as developments occur. If you have any questions about this Alert, please contact your designated Fragomen professional.