Washington Law Review


Rachel Feller


In 1996, Congress established E-Verify, a program that allows employers to confirm the employment eligibility of new hires by using a federal electronic database. Although the federal government makes the program voluntary for employers, some states and municipalities have enacted legislation requiring the program’s use to prevent the employment of undocumented workers. Some of these state laws have been challenged in federal court on the grounds that they are preempted by federal law, particularly the Immigration Reform and Control Act of 1986 (IRCA). Courts have divided on this issue. This Comment explains the boundaries of preemption in the context of E-Verify legislation by using Arizona’s E-Verify law and the Ninth Circuit’s decision in Chicanos por la Causa v. Napolitano as a case study. It argues that state E-Verify provisions may sanction employers for knowingly hiring undocumented workers only if the sanction is based on a federal finding that the employer violated IRCA. Specifically, this Comment argues that the Ninth Circuit erred by classifying Arizona’s E-Verify statute as an employment law and by allowing Arizona to revoke business licenses based on a state judge’s finding that the employer knowingly hired undocumented workers. This Comment argues that courts should recognize that Congress created and occupied a field of federal regulation: immigration-related employment practices.

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