Supreme Court of the United States

No. 09-115 IN THE Supreme Court of the United States CHAMBER OF COMMERCE OF THE UNITED STATES, et al., Petitioners, v. MICHAEL B. WHITING, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF PETITIONERS RAE T. VANN JUDITH A. LAMPLEY Counsel of Record NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W. Suite 400 Washington, DC 20005 jlampley@ntll.com (202) 629-5696 September 2010 Attorneys for Amicus Curiae Equal Employment Advisory Council WILSON-EPES PRINTING CO., INC. (202) 789-0096 WASHINGTON, D. C. 20002

TABLE OF CONTENTS TABLE OF AUTHORITIES... Page INTEREST OF THE AMICUS CURIAE... 2 STATEMENT OF THE CASE... 3 SUMMARY OF ARGUMENT... 5 ARGUMENT... 8 I. ARIZONA S STATE IMMIGRATION LAW CONFLICTS WITH FEDERAL IMMIGRATION LAW AND POLICY AND THEREFORE IS PREEMPTED... 8 A. It Is Within The Sole Province Of The Federal Government To Establish A Comprehensive Scheme For The Regulation Of Immigration In The United States... 8 1. The Immigration and Nationality Act establishes the foundation for uniform federal immigration policy... 8 2. IRCA is, and was intended to be, the sole federal mechanism for regulating the employment of aliens in the U.S.... 10 3. IIRIRA further demonstrates Congress intent to establish a uniform, federal system of immigration enforcement... 11 iii (i)

ii TABLE OF CONTENTS Continued Page B. Together, IRCA And IIRIRA Establish A Uniform Method For Verifying The Employment Eligibility Of New Hires, Thus Preempting Inconsistent State And Local Laws... 13 II. THE VAST RANGE AND VARIETY OF STATE AND LOCAL IMMIGRATION LAWS MAKE IT VIRTUALLY IMPOSSIBLE FOR EMPLOYERS TO ENSURE FULL COMPLIANCE, THEREBY UNDERMINING THE EFFECTIVENESS OF FEDERAL IMMIGRATION POLICY... 14 A. Including Arizona, There Are No Fewer Than Forty-One States Purporting To Regulate In The Area Of Immigration As It Relates To Employment, Rendering Compliance Extremely Difficult... 14 B. State And Local Immigration Laws And Ordinances Often Include Additional And Stricter Requirements Than Those Imposed On Employers By Federal Law... 16 C. It Was Not Congress Intent For The Verification Of Employment Eligibility To Impose A Substantial Burden On Employers... 17 CONCLUSION... 18

FEDERAL CASES iii TABLE OF AUTHORITIES Page Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001)... 7 Collins Foods International, Inc. v. INS, 948 F.2d 549 (9th Cir. 1991)... 17 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)... 14 Geier v. American Honda Motor Co., 529 U.S. 861 (2000)... 14 Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707 (1985)... 13 Hines v. Davidowitz, 312 U.S. 52 (1941)... 7 International Paper Co. v. Ouellette, 479 U.S. 481 (1987)... 14 National Center for Immigrants Rights, Inc. v. INS, 913 F.2d 1350 (9th Cir. 1990), rev d on other grounds, 502 U.S. 183 (1991)... 6, 7 Toll v. Moreno, 458 U.S. 1 (1982)... 9, 10 Zadvydas v. Davis, 533 U.S. 678 (2001)... 10 UNITED STATES CONSTITUTION U.S. Constitution, art. 1, 8, cl. 4... 5 FEDERAL STATUTES Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009... passim Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163... 5, 8

iv TABLE OF AUTHORITIES Continued Page Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359... passim 8 U.S.C. 1324a... 4 8 U.S.C. 1324a(a)(1)(A)... 9 8 U.S.C. 1324a(a)(3)... 10 8 U.S.C. 1324a(b)... 10 8 U.S.C. 1324a(e)... 10 8 U.S.C. 1324a(e)(4)... 10 8 U.S.C. 1324a(f)... 10 8 U.S.C. 1324a(h)(2)... 9 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.... 2 STATE STATUTES 820 Ill. Comp. Stat. 55/12... 16 Colo. Rev. Stat. 8-2-122... 16 Ga. Code Ann. 13-10-91(b)... 16 Ga. Code Ann. 48-7-101(i)... 17 Legal Arizona Workers Act, Ariz. Rev. Stat. 23-211 et seq.... passim Ariz. Rev. Stat. 23-212.F... 3 Ariz. Rev. Stat. 23-212.F.1(b)... 3 Ariz. Rev. Stat. 23-212.F.1(c)... 3 Ariz. Rev. Stat. 23-212.F.2... 3 Ariz. Rev. Stat. 23-212.01.F... 3 Ariz. Rev. Stat. 23-212.01.F.1(b)... 3 Ariz. Rev. Stat. 23-212.01.F.1(c)... 3 Ariz. Rev. Stat. 23-212.01.F.2... 3 Ariz. Rev. Stat. 23-214.A... 4 Ariz. Rev. Stat. 23-214.B... 4 La. Rev. Stat. 23:992.2... 17

v TABLE OF AUTHORITIES Continued Page Me. Rev. Stat. Ann., tit. 26, 871(1-A)... 17 Neb. Rev. Stat. 48-2911... 16 Okla Stat. tit. 68, 2385.32... 17 S.C. Code Ann. 12-8-595(A)-(B)... 17 W. Va. Code 21-1B-3... 16 FEDERAL REGULATIONS 8 C.F.R. 274a.1(f)-(g)... 17 LEGISLATIVE HISTORY H.R. Conf. Rep. No. 99-1000 (1986), as reprinted in 1986 U.S.C.C.A.N. 5840... 17 H.R. Rep. No. 99-682, pt. 1 (1986), as reprinted in 1986 U.S.C.C.A.N. 5649... 17 S. Rep. No. 99-132 (1986)... 17, 18 OTHER AUTHORITIES Department of Homeland Security, E- Verify webpage (Sept. 2010)... 11 Exec. Order No. 12,989, 61 Fed. Reg. 6091 (Feb. 13, 1996)... 2 Exec. Order No. 13,465, 75 Fed. Reg. 33,285 (June 6, 2008)... 2 National Conference of State Legislatures Immigrant Policy Project, 2005-2010 Reports... 15 Staff Report of the Select Commission on Immigration and Refugee Policy, U.S. Immigration and the National Interest (1981)... 9

vi TABLE OF AUTHORITIES Continued Page U.S. Citizenship and Immigration Services, E-Verify User Manual for Federal Contractors (June 2010)... 12 U.S. Citizenship and Immigration Services, Frequently Asked Questions: Federal Contractors and E-Verify (Apr. 2010)... 15 Westat, Findings of the E-Verify Program Evaluation (Dec. 2009)... 13

IN THE Supreme Court of the United States No. 09-115 CHAMBER OF COMMERCE OF THE UNITED STATES, et al., Petitioners, v. MICHAEL B. WHITING, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF PETITIONERS The Equal Employment Advisory Council respectfully submits this brief as amicus curiae. 1 The brief supports the position of Petitioners before this Court in favor of reversal. 1 The parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, its members, or its counsel made a monetary contribution to its preparation or submission.

2 INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of discriminatory employment practices. Its membership includes over 300 major U.S. corporations. EEAC s directors and officers include many of the nation s leading experts in the field of equal employment opportunity. Their combined experience gives EEAC an unmatched depth of knowledge of the legal and practical considerations relevant to interpreting and complying with workforce nondiscrimination requirements. EEAC s members are firmly committed to the principles of nondiscrimination and equal employment opportunity. All of EEAC s members are employers subject to the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as amended, and other employment-related statutes and regulations. Many of EEAC s members also do business in the state of Arizona and are subject to the Legal Arizona Workers Act (LAWA), Ariz. Rev. Stat. 23-211 et seq. In addition, the majority of EEAC members are federal contractors and thus are subject to the requirements of Executive Order 12,989, as amended by Executive Order 13,465. Exec. Order No. 12,989, 61 Fed. Reg. 6091 (Feb. 13, 1996); Exec. Order No. 13,465, 75 Fed. Reg. 33,285 (June 6, 2008). As large, nationwide employers, EEAC s members have a direct and ongoing interest in the enforcement

3 of the nation s immigration laws and in hiring and retaining a competent and skilled workforce comprised of individuals who are authorized to work in this country legally. The issue presented in this matter regarding whether LAWA is preempted by IRCA and IIRIRA therefore is extremely important to the nationwide constituency that EEAC represents. EEAC has an interest in, and a familiarity with, the legal and public policy issues presented to the Court in this case. Furthermore, because of its significant experience in these matters, EEAC is well-situated to brief the Court on the importance of the issues beyond the immediate concerns of the parties to the case. STATEMENT OF THE CASE Arizona s Legal Arizona Workers Act (LAWA) was signed into law in July 2007, and became effective on January 1, 2008. Ariz. Rev. Stat. 23-211 et seq. It imposes sanctions on employers who knowingly or intentionally employ unauthorized workers. Ariz. Rev. Stat. 23-212.F, 23-212.01.F. Under LAWA, an employer found guilty of a first-time hiring violation can have its license to do business in the state suspended for up to ten days. Ariz. Rev. Stat. 23-212.F.1(c), 23-212.01.F.1(c). The employer also is subject to probation for up to five years, Ariz. Rev. Stat. 23-212.F.1(b), 212.01.F.1(b), and if a second hiring violation during the probationary period is committed, LAWA mandates a permanent revocation of the employer s license. Ariz. Rev. Stat. 23-212.F.2, 212.01.F.2. LAWA also mandates that employers doing business in Arizona participate in E-Verify, the federal electronic database managed jointly by the Depart-

4 ment of Homeland Security and the Social Security Administration for verifying the employment authorization of all new hires to a company. Ariz. Rev. Stat. 23-214.A. An Arizona employer that fails to participate in E-Verify may be denied economic development benefits and forced to repay any benefits previously obtained from the state. Ariz. Rev. Stat. 23-214.B. Shortly after LAWA was enacted, Petitioners filed separate lawsuits in the U.S. District Court for the District of Arizona against the State of Arizona and several state officials. Pet. App. 51a. Those lawsuits later were consolidated into this single action. Id. Among other things, Petitioners contended that 1) LAWA is expressly and impliedly preempted by the federal Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. 1324a; and 2) LAWA conflicts with Congress intent to keep E-Verify voluntary. Pet. App. 7a. At trial, Respondents maintained that LAWA is a licensing law and thus is exempt from IRCA s state preemption provisions. Respondents also argued that while Congress established E-Verify as a voluntary system, they never prohibited states from making the program mandatory for employers. The district court ruled that to the extent LAWA is a licensing law that falls within the savings clause of IRCA s preemption provisions, it is not expressly preempted by IRCA. Pet. App. 61a-63a. It further found that neither LAWA s sanctioning provisions nor its requirement to participate in E-Verify were inconsistent with federal policy and therefore not impliedly preempted by IRCA. Id. at 78a-85a. Finally, the district court ruled that although Congress established E-Verify as a voluntary program, it

5 did not explicitly preclude states from mandating participation. Id. at 85a. On appeal, the Ninth Circuit affirmed, concluding that because LAWA provides for the suspension and permanent revocation of any state-issued license held by an employer, it is a licensing law and therefore not expressly preempted by IRCA. Id. at 25a. The Ninth Circuit also held that LAWA is not impliedly preempted by IRCA because LAWA governs employment, not immigration. It also rejected Petitioners claim that the LAWA provision mandating E-Verify is preempted because it conflicts with Congress intent to keep E-Verify voluntary. Pet. App. 19a-22a. The court stated that simply because Congress established E-Verify as a voluntary program does not, in itself, suggest that Congress intended to prevent states from making participation in E-Verify mandatory. Id. at 21a. Rather, it found that Congress implicitly encouraged states to use E- Verify by expanding its availability to all 50 states, a purpose it concluded was furthered by LAWA. Id. Petitioners filed a petition for writ of certiorari, which this Court granted on June 28, 2010. SUMMARY OF ARGUMENT For centuries, legislating in the field of immigration policy and law has been within the sole province of the federal government. U.S. Const., art. 1, 8, cl. 4 (giving Congress the power to establish an uniform Rule of Naturalization ). The Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163, in which Congress laid out a comprehensive plan for the regulating of immigrants coming to and living in the U.S., is the foundation on which current immigration law is based.

6 As time has passed and economic and cultural changes have taken place, Congress has adjusted U.S. immigration policy and amended the INA to reflect these changes. The first amendment to the INA to address the issue of the employment of aliens was the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. IRCA makes it unlawful for employers to knowingly hire or continue to employ unauthorized aliens and provides a documentation process, the Form I-9 process, by which employers may determine the employment eligibility of their new hires. IRCA was followed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, which further amended the INA by providing employers, on a voluntary basis, with a federal electronic database through which they could further verify the employment authorization of their new hires. This database, now known as E-Verify, compares information collected by the employer on the Form I-9 with information in an electronic database administered by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). If the information matches, the employer receives confirmation from E-Verify that the new hire is workauthorized. If the information does not match, the employer and employee must begin the process of resolving the tentative nonconfirmation (TNC). Together IRCA and IIRIRA provide a uniform and carefully-crafted federal mechanism for regulating the employment of aliens in the U.S. See Nat l Ctr. for Immigrants Rights, Inc. v. INS, 913 F.2d 1350, 1366 (9th Cir. 1990) (federal immigration law is a carefully crafted political compromise which at every

7 level balances specifically chosen measures discouraging illegal employment... ), rev d on other grounds, 502 U.S. 183 (1991). To the extent that a state law seeks to regulate in the area of immigration in a manner inconsistent with federal law, it is preempted. As this Court has said: [W]here the federal government, in the exercise of its superior authority in this field [of immigration], has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (footnote omitted); see also Buckman Co. v. Plaintiffs Legal Comm., 531 U.S. 341, 348-50 (2001). There currently are no fewer than 41 state laws purporting to regulate in the area of immigration as it relates to employment. A number of these state and local immigration laws include additional and sometimes stricter requirements than those imposed on employers by federal law. These inconsistent and overlapping state laws conflict with the federal government s comprehensive plan to regulate the employment of aliens, and make it increasingly more difficult for employers to ensure full compliance.

8 ARGUMENT I. ARIZONA S STATE IMMIGRATION LAW CONFLICTS WITH FEDERAL IMMIGRA- TION LAW AND POLICY AND THERE- FORE IS PREEMPTED A. It Is Within The Sole Province Of The Federal Government To Establish A Comprehensive Scheme For The Regulation Of Immigration In The United States 1. The Immigration and Nationality Act establishes the foundation for uniform federal immigration policy Going as far back as 1790, Congress has legislated in the area of federal immigration. 2 In 1952, Congress enacted the Immigration and Nationality Act (INA), Pub. L. No. 82-414, 66 Stat. 163, which established a uniform federal policy for the admission of aliens into the United States. The INA consolidated and gave structure to what had been an ad hoc assortment of previous measures, and today stands as the basis for all federal immigration policy. More recently, Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, which amended the INA to, among other things, strengthen federal immigration policy by addressing the issue of the employment of aliens and the responsibilities of employers for hiring only authorized workers. IRCA makes it unlawful to hire, or to recruit or refer for a fee for employment in 2 For example, the Naturalization Act of 1790, the Chinese Exclusion Act in 1882, the Emergency Immigration Act in 1921, and the Immigration Act of 1924.

9 the United States an alien knowing the alien is an unauthorized alien.... 8 U.S.C. 1324a(a)(1)(A). At that time, at least twelve states had enacted independent employer sanctions laws prohibiting the knowing employment of unauthorized aliens. 3 Congress responded by enacting IRCA so as to ensure consistent and uniform federal immigration policy. IRCA specifies that [t]he provisions of [8 U.S.C. 1324a] preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. 1324a(h)(2). The legislative history further expresses Congress intent to be the sole voice of national immigration policy. See Pub. L. No. 99-603, 115, 100 Stat. at 3384. ( It is the sense of Congress that... the immigration laws of the United States should be enforced vigorously and uniformly ) (emphasis added). This Court has recognized the federal government s unique role in the formulation of U.S. immigration policy. As it observed in Toll v. Moreno: Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. Federal authority to regulate the status of aliens derives from various sources, including the Federal Government s power [to] establish [a] uniform Rule of Naturalization, its power [to] regulate Commerce with foreign Nations, and its broad authority over foreign affairs. 3 Staff Report of the Select Commission on Immigration and Refugee Policy, U.S. Immigration and the National Interest 565 (1981).

10 458 U.S. 1, 10 (1982) (citations omitted). See also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (where the Court recognized the Nation s need to speak with one voice in immigration matters ) (citation omitted). 2. IRCA is, and was intended to be, the sole federal mechanism for regulating the employment of aliens in the U.S. In order to ensure full compliance with the statute, IRCA contains an employment eligibility verification system, known as the I-9 process, which requires employers to review documents presented by a new hire that establish the individual s identity and work authorization, and then to attest to this examination and verification. 8 U.S.C. 1324a(b). IRCA specifies what form employers are to use (DHS Form I-9), the documents that employees may present to show identity and work authorization, and the retention and recordkeeping requirements for those forms and documents. Id. The statute provides a safe harbor for employers who comply in good faith with its employment eligibility verification requirements, 8 U.S.C. 1324a(a)(3), but also establishes an adjudication process for employers not in compliance. 8 U.S.C. 1324a(e). If a violation is found to have occurred, IRCA specifies civil and criminal sanctions for employers, including graduated monetary penalties, civil injunctions, criminal fines or imprisonment. 8 U.S.C. 1324a(e)(4), 1324a(f).

11 3. IIRIRA further demonstrates Congress intent to establish a uniform, federal system of immigration enforcement Ten years after the enactment of IRCA, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009. IIRIRA established what was then referred to as the Basic Pilot Program and now is known as E-Verify. E-Verify provides a supplementary means for employers to verify the employment eligibility of their new hires. Through E-Verify, employers access an electronic database jointly administered by the Department of Homeland Security (DHS) and the Social Security Administration (SSA) in order to verify the documentation provided by the employee for completion of the I-9. E-Verify has been adopted by over 216,000 employers with, on average, an additional 1,400 users being added every week. 4 When E-Verify initially was established, participation was voluntary and not available in all states. Since then, the program has been expanded and made available to employers on a voluntary basis in all 50 states. In 2008 President Bush signed Executive Order 13,465, which mandates E-Verify participation by most federal contractors for both new hires and existing employees with respect to nonexempt contracts that were entered into on or after January 15, 2009, and to certain indefinite-delivery/ indefinite-quantity (IDIQ) contracts that are modified after that date. 4 Dep t of Homeland Sec., E-Verify webpage, http://www.dhs. gov/files/programs/gc_1185221678150.shtm (last visited Sept. 2, 2010).

12 Participation in E-Verify requires not only the completion of the I-9 form, but also that the employer enter the I-9 data into the E-Verify system and await final confirmation or nonconfirmation from DHS and/or SSA. U.S. Citizenship and Immigration Servs., E-Verify User Manual for Federal Contractors 16 (June 2010). 5 In the event of a tentative nonconfirmation (TNC), the employer must contact the affected employee, advise the individual of his or her available options, and provide a form on which the employee must indicate whether he or she plans to contest the TNC. Id. at 27, 36. If the employee chooses to contest the TNC, the employer must generate for the employee through E-Verify a referral letter to either the SSA or DHS. Id. at 30, 39. If the employee chooses not to contest the TNC, then the employer must consider terminating the employee or face possible sanctions for knowingly employing an illegal alien. Id. at 27, 36. If the employee does contest the TNC, the employer must continue to monitor E-Verify for a final response regarding the employee s authorization to work. Id. at 32-33, 42-43. During this time, the employer is required to keep the employee on its payroll, begin integrating the individual into the employer s workforce and, in some cases, begin training this individual, who ultimately may be found to be unauthorized to work legally in the U.S. The average time lapse between an employer s initiation of a single E-Verify inquiry and 5 Available at http://www.uscis.gov/uscis/e-verify/customer %20Support/E-Verify%20User%20Manual%20for%20Federal%20 Contractors_Final.pdf

13 resolution of a tentative nonconfirmation is 12.6 days. 6 B. Together, IRCA And IIRIRA Establish A Uniform Method For Verifying The Employment Eligibility Of New Hires, Thus Preempting Inconsistent State And Local Laws IRCA, as augmented by IIRIRA, was intended to comprise a uniform and comprehensive scheme designed to ensure the work authorization of the U.S. workforce. For Arizona, and other state and local governments, to attempt to supplement this inclusive and standardized strategy is to disregard the careful balance established by Congress. This Court has recognized the danger in allowing states to interfere with the uniform enforcement of federal law. In Hillsborough County v. Automated Medical Laboratories, Inc., the Court explained that Congress intent to pre-empt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation. Pre-emption of a whole field also will be inferred where the field is one in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. 471 U.S. 707, 713 (1985) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). See also 6 Westat, Findings of the E-Verify Program Evaluation (Dec. 2009), available at http://www.uscis.gov/uscis/e-verify/e-verify/ Final%20E-Verify%20Report%2012-16-09_2.pdf

14 Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73 (2000) (a state or local law is conflict preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and field preempted if it operates in an area that Congress intends federal law to occupy) (citation omitted). As the Court observed in International Paper Co. v. Ouellette, the inevitable result of state laws that impose separate standards on a single source would be a serious interference with the achievement of the full purposes and objectives of Congress. 479 U.S. 481, 493 (1987) (citation omitted). See also Geier v. American Honda Motor Co., 529 U.S. 861, 881 (2000) ( Because the rule of law for which petitioners contend would have stood as an obstacle to the accomplishment and execution of the important means-related federal objectives that we have just discussed, it is pre-empted ). II. THE VAST RANGE AND VARIETY OF STATE AND LOCAL IMMIGRATION LAWS MAKE IT VIRTUALLY IMPOSSI- BLE FOR EMPLOYERS TO ENSURE FULL COMPLIANCE, THEREBY UNDER- MINING THE EFFECTIVENESS OF FEDERAL IMMIGRATION POLICY A. Including Arizona, There Are No Fewer Than Forty-One States Purporting To Regulate In The Area Of Immigration As It Relates To Employment, Rendering Compliance Extremely Difficult According to the National Conference of State Legislatures (NCSL), between 2005 and the first half

15 of 2010, state legislatures have enacted 981 laws related to immigrants and immigration, of which 115 deal with the issue of employment. NCSL Immigrant Policy Project, 2005-2010 Reports. 7 Those 115 laws span 41 different states. Eleven of those states require some level of participation by employers in E- Verify. Id. This patchwork of state requirements makes the verification process unnecessarily cumbersome and contributes nothing of value to the overall objective of controlling illegal immigration. For employers who are not required as federal contractors to participate in E-Verify, but must do so because of state or local laws, they must choose between participating in E-Verify only at those staterequired locations or undertaking the timeconsuming and resource-intensive course of action required to participate in E-Verify at all of their operations nationwide. For federal contractors who already are required to participate in E-Verify, only those entities within the company that have actually signed the federal contract are required to participate 8 in E-Verify. For example, Company A has ten divisions, but only Divisions 1, 3 and 9 have signed federal contracts. Consequently, only Divisions 1, 3 and 9 are required to participate in E-Verify with respect to new hires and existing employees. 7 Available at http://www.ncsl.org/default.aspx?tabid=19897 (last visited Aug. 25, 2010). 8 U.S. Citizenship and Immigration Servs., Frequently Asked Questions: Federal Contractors and E-Verify (Apr. 2010), available at http://www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919f35e66f614176543f6d1a/?vgnextoid=30edde1d67ee42 10VgnVCM100000082ca60aRCRD&vgnextchannel=534bbd181e09 d110vgnvcm1000004718190arcrd (last visited Aug. 25, 2010).

16 However, if any of Company A s Divisions have facilities in Arizona or any other state requiring E-Verify participation, Company A and those Divisions must identify those facilities and determine to what extent participation in E-Verify is required for each facility, the Division, and/or the company. For large companies that have centralized their employment verification operations, juggling their E-Verify compliance obligations at both the state and federal level can be extremely difficult. B. State And Local Immigration Laws And Ordinances Often Include Additional And Stricter Requirements Than Those Imposed On Employers By Federal Law In addition to requiring employers to participate in E-Verify, certain individual state laws also impose additional and sometimes stricter requirements on employers. For instance, West Virginia requires employers to complete the verification of employment eligibility prior to their first day of work, whereas federal law gives the employer up to three days after the start of employment to complete the I-9 Form. W. Va. Code 21-1B-3. Illinois, Colorado, Georgia, and Nebraska require employers to complete additional attestation forms to be filed with the state in conjunction with the employment eligibility process. 820 Ill. Comp. Stat. 55/12; Colo. Rev. Stat. 8-2-122; Ga. Code Ann. 13-10-91(b); Neb. Rev. Stat. 48-2911. 9 Louisiana restricts the number and types of documents employers may accept to verify work authori- 9 Available at http://nebraskalegislature.gov/laws/statutes. php?statute=48-2911

17 zation status to those approved by state authorities. La. Rev. Stat. 23:992.2. Also, Georgia and South Carolina impose special tax withholding requirements on employers who fail to collect additional information from employees beyond that required in the I-9 or E-Verify processes. Ga. Code Ann. 48-7-101(i); S.C. Code Ann. 12-8- 595(A)-(B). Oklahoma requires employers to verify the employment eligibility of independent contractors, Okla Stat. tit. 68, 2385.32, even though federal law does not, 8 C.F.R. 274a.1(f)-(g), and Maine prohibits an employer who has been found to have employed an illegal alien from sponsoring and obtaining a visa for an H-2A temporary or seasonal agricultural worker. Me. Rev. Stat. Ann., tit. 26, 871(1-A). C. It Was Not Congress Intent For The Verification Of Employment Eligibility To Impose A Substantial Burden On Employers In crafting a uniform system of federal employment eligibility and verification laws, Congress was sensitive to the burden these new requirements would place on employers. It viewed IRCA as a means of deterring illegal immigration while at the same time being the least disruptive to the American businessman. H.R. Rep. No. 99-682, pt. 1, at 56 (1986), as reprinted in 1986 U.S.C.C.A.N. 5649, 5660; S. Rep. No. 99-132, at 8-9 (1986). The legislative history of [IRCA] indicates that Congress intended to minimize the burden and the risk placed on the employer in the verification process. Collins Foods Int l, Inc. v. INS, 948 F.2d 549, 554 (9th Cir. 1991). Congress expressed particular concern that the law not impose excessive burdens on small businesses or for isolated

18 violations. See, e.g., H.R. Conf. Rep. No. 99-1000, at 86 (1986), as reprinted in 1986 U.S.C.C.A.N. 5840, 5841; S. Rep. No. 99-132, at 32 (1986). Congress intended the federal government to be the sole regulator of U.S. immigration law and policy. Individual state laws such as Arizona s undermine this intent, and add unnecessary requirements to an already comprehensive scheme for managing the employment of aliens in the United States. CONCLUSION For the foregoing reasons, the decision below should be reversed. Respectfully submitted, September 2010 RAE T. VANN JUDITH A. LAMPLEY Counsel of Record NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W. Suite 400 Washington, DC 20005 jlampley@ntll.com (202) 629-5696 Attorneys for Amicus Curiae Equal Employment Advisory Council