Q: My brother lives out of state. If he knowingly employ an unauthorized alien, a state law allows the court to revoke his business licenses. A first knowing violation requires him to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of many years. A second knowing violation requires permanent revocation of all of his licenses specific to the business location where the unauthorized alien performed work. In addition, the state law requires that he verify employment eligibility by using a central federal system. Isn’t this law preempted by the federal Immigration Reform and Control Act?
A: The federal requirements and this state requirement can move freely within the orbits of their respective purposes without impinging upon one another. Although the federal act expressly preempts some state powers dealing with the employment of unauthorized aliens, it expressly preserves others. The state law appears to fall well within the confines of the authority Congress chose to leave to the states.
Indeed, the state appears to have gone the extra mile in ensuring that its law closely tracks the federal act’s provisions. Both the federal and the state law accord the employer a presumption of compliance when he uses the federal system to validate a finding of employment eligibility.
License suspension and revocation are significant sanctions, but they are typical attributes of a state licensing regime. It makes little sense to preserve the state’s authority to impose sanctions that concern licensing, but not allow the state to revoke licenses as a sanction for immigration violations. The state procedures simply implement the sanctions that Congress expressly allowed state to pursue through licensing laws.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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