Employment Authorization Verification
ARCHIVED ISSUE PAGE (LAST UPDATED OCTOBER 2010)
This Litigation Issue Page highlights lawsuits challenging government initiatives related to employment verification, including the Internet based E-Verify system and "no-match" letters issued by the Social Security Administration.
Several states and local governments have enacted laws regulating employment verification. These laws have prompted litigation, typically challenging whether they are preempted by federal law. The following cases are on our State and Local Law Enforcement Issue Page
- Arizona Contractors Assoc., Inc. v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007), aff'd sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), petition for cert. filed sub nom. Chamber of Commerce v. Candelaria, (July 24, 2009) (No. 09-115)
- United States v. Illinois, No. 07-3261, 2009 U.S. Dist. LEXIS 19533 (C.D. Ill. 2009)
- Gray et al. v. City of Valley Park, No. 07-00881 (E.D. Mo. Jan. 31, 2008) appeal docketed, No. 08-1681 (8th Cir. argued Dec. 10, 2008)
- Chamber of Commerce v. Henry, No. 08-109 (W.D. Okla. filed Feb. 1, 2008), appeal docketed, No. 08-6128 (10th Cir. argued May 4, 2009)
Business Groups Challenge Rule Mandating Participation in E-Verify
Chamber of Commerce v. Chertoff, No. 08-03444 (D. Md. summary judgment granted Aug. 26, 2009) appeal docketed, No. 09-2006 (4th Cir. Sept. 3, 2009)
The United States Chamber of Commerce and other business groups filed a lawsuit challenging a new USCIS rule and a June 6, 2008, executive order that require certain government contractors and subcontractors to participate in the E-Verify program. E-Verify is a voluntary Internet-based system that allows employers to attempt to verify electronically that newly hired employees are authorized to work in the United States.
Plaintiffs allege that the rule and the executive order violate IIRIRA § 402(a) which precludes the Secretary of Homeland Security from requiring participation in a pilot program, such as E-Verify. Even if the requirements imposed by the executive order and the rule are not expressly prohibited by IIRIRA, the plaintiffs allege that the requirements are not authorized by government procurement law. In addition, the requirements exceed the E-Verify program's statutory mandate and are legislative and thus, exceed the executive branch's constitutional authority. Finally, plaintiffs allege that the rule is procedurally defective because defendants failed to comply with proper notice procedures and the Regulatory Flexibility Act.
The rule requiring participation in the program originally was scheduled to go into effect January 15, 2009. DHS agreed to suspend the rule, however, to allow President Obama's Administration an opportunity to review it. On July 8, 2009, DHS announced that it intended to "push ahead with full implementation of the rule," and that the rule would go into effect in September 2009. The court rejected plaintiffs' claims and granted defendants' cross motion for summary judgment on August 26, 2009. Plaintiffs filed a notice of appeal to the Fourth Circuit and asked the district court to grant an emergency motion for an injunction pending the appeal in order to prevent the rule from going into effect on September 8. On September 4, 2009, the court denied the request for an injunction. In December 2009, the plaintiffs voluntarily dismissed the appeal to the Fourth Circuit.
- DHS Announcement Regarding Intention to Implement the Rule (July 8, 2009)
- Plaintiffs' Memorandum in Support of Summary Judgment
- Defendants' Memorandum in Support of Summary Judgment
- Court Memorandum Granting Defendants’ Cross Motion for Summary Judgment
- Plaintiffs’ Emergency Motion for an Injunction Pending Appeal
- Order Denying Motion for an Injunction Pending Appeal
Social Security No-Match Letter Litigation
The Social Security Administration (SSA) issues no-match letters when the names or Social Security numbers listed on an employee's Form W-2 do not match the SSA's records. In August 2007, DHS issued a final rule outlining employers' obligations upon receiving a no-match letter. 72 Fed. Reg. 45611 (Aug. 15, 2007). As described in detail below, several labor unions filed a lawsuit challenging the rule and the court issued a preliminary injunction preventing implementation of the rule. On July 8, 2009, DHS said that it will rescind the no-match rule.
Additional information on the no-match rule is found on the National Immigration Law Center's (NILC) website.
Social Security No-Match Rule Challenged by Labor Unions
American Federation of Labor and Congress of Industrial Organizations. v. Napolitano, No. 07- 4472 (N.D. Cal. filed Aug. 29, 2007)
Several labor unions filed suit to prevent the implementation of DHS' final rule regarding employers who receive Social Security no-match letters. The rule, published in the Federal Register on August 15, 2007, had an effective date of September 14, 2007. Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (Aug. 15, 2007). Days after filing suit, on August 31, 2007, the district court granted a temporary restraining order (TRO) enjoining defendants from "giving any effect or otherwise taking any action to implement" the new rule.
Several chambers of commerce and other business groups moved to intervene as plaintiffs in this case pursuant to Federal Rule of Civil Procedure 24(b). The court granted their unopposed motion on September 11, 2007.
On October 10, 2007, the court granted a preliminary injunction enjoining the government from enforcing the Social Security no-match rule. The court held that relief was appropriate because plaintiffs raised serious questions about whether 1) the rule is arbitrary and capricious because DHS failed to supply a reasoned analysis for its new position that a no-match letter is sufficient, by itself, to put an employer on notice of an employee's unauthorized status; 2) DHS exceeded its authority by interpreting the Immigration Reform and Control Act's (IRCA) anti-discrimination provision and 3) DHS violated the Regulatory Flexibility Act by not conducting a final flexibility analysis.
On October 28, 2008, DHS published a supplemental final rule, see 73 Fed. Reg 63843-67 (Oct. 28, 2008). According to the National Immigration Law Center (NILC), the supplemental final rule includes additional legal analysis and a Final Regulatory Flexibility Analysis, but essentially re-issued the August 2007 final rule "without substantive change." NILC states that the issuance of the final supplemental rule will not impact the injunction blocking the rule until the court rules to dissolve the injunction or determines the legality of the rule.
According to DHS, the supplemental rule clarified the "safe harbor" steps that employers can take upon receipt of a no-match letter, as described in INA § 274A.
On July 8, 2009, DHS announced that it plans to rescind the 2007 No-Match rule. Thereafter, DHS filed an unopposed motion to stay proceedings until the rule is formally rescinded.
- Motion to Intervene (Sept. 14, 2007)
- Court Order Granting Preliminary Injunction (Oct. 10, 2007)
- Government Motion to Stay Proceedings Pending New Rulemaking (Nov. 23, 2007)
- Government Motion to Vacate Court's Preliminary Injunction and for Summary Judgment
- DHS Announcement Regarding Decision to Rescind the Rule (July 8, 2009)
Ninth Circuit: No-Match Letter Not "Constructive Knowledge;" Does Not Resolve Challenge To Safe Harbor Rule
Aramark Facility Services v. SEIU, No. 06-56662, 2008 U.S. App. LEXIS 12704 (9th Cir. Jun. 16, 2008).
In a lawsuit filed by a labor union against an employer, the Ninth Circuit held that the SSA's no-match letter and the employees' failure to meet a short deadline to resolve the discrepancy did not put the employer on constructive notice that it was employing undocumented workers.
The Service Employees International Union (SEIU) sued Aramark after the company terminated 33 of its employees. The company had received no-match letters from the SSA and gave 48 employees three days to correct the mismatches. When 33 employees did not comply, Aramark terminated them. An arbitrator awarded backpay and reinstatement to the terminated employees, but a California district court vacated the award, reasoning that it violated public policy. SEIU appealed.
On appeal, the court found that the no-match letters themselves could not put the employer on notice that any particular employee was undocumented. The court noted that the purpose of the letters was not immigration-related and that SSA specifically told employers that the letter itself does not provide any information about immigration status. In addition, the court found that the fired employees' reactions to the no-match letters and to the employer's directive to the employees following receipt of the letters did not amount to constructive notice. After receiving the no-match letters, the employer sent letters to the employees directing them to go to the SSA office to correct the discrepancy and, within three days, provide verification that a new Social Security card was being processed; failure to comply with the directive would result in termination. This "extremely demanding policy" and the employees' failure to comply could not give rise to constructive notice.
The court compared the facts of the case to the safe harbor regulations. Specifically, the Court noted that even the new regulations, which "are currently subject to a preliminary injunction, would not treat the no-match letter itself as creating constructive knowledge of an immigration violation." Further, the court commented that the employer's policy of requiring employees to provide verification within three days, "was significantly more accelerated" than the policy envisioned under the safe harbor regulations, which gives the employer 90 days to resolve the discrepancy. Pursuant to the Ninth Circuit’s order, the original arbitration awarded was subsequently reinstated.
Importantly, the events that gave rise to this case took place in 2003, prior to DHS' promulgation of the new rule regarding no-match letters and the safe harbor procedures ("safe harbor regulations"), 72 Fed. Reg. 45611 (Aug. 15, 2007), and the proposed amendments to this rule, 73 Fed. Reg. 15944 (Mar. 26, 2008).
- Supplemental Final Rule on Safe Harbor Procedures for Employers Who Receive No Match Letters (Oct. 28, 2008).
- DHS Final Rule Regarding Employers Who Receive No-Match Letter (Aug. 15, 2007)
Hold CBP Accountable
actions taken across the country in an ongoing effort to establish accountability and transparency of one of the fastest growing agencies in the United States.
Administrative Relief Resource Center
Learn how individuals can prepare for administrative relief, find legal assistance and community education resource, and ways that you can help immigrants and immigrant-serving organizations.
- District Court Rules Grant of TPS Is an Admission for Adjustment of Status Purposes
- First Circuit Joins Other Courts in Holding That Immigrants Can Pursue Cases From Outside the United States
- Seventh Circuit Decision Expands Availability of Hardship Waivers to Lawful Permanent Residents
- ICE Agrees to Release Thousands of Previously-Withheld Records
- Court Says ICE Failed to Satisfy FOIA Requirements in Council’s Suit to Compel Disclosure of Records on Access to Counsel
- Eleventh Circuit Holds That Filing Limitations on Motions to Reopen Are Subject to Equitable Tolling
- Visa Bulletin “Do-Over” Undercuts Visa Modernization
- First Step in Visa Modernization: Making the Wait More Palatable
- Five Families Released After Prolonged Detention
- Restrictionists Continue to Attack H-4 Work Authorization
- Government Ordered to Promptly Release Children From Family Detention
- Court Issues Decision in Washtech, Case Challenging Training for U.S.-Educated Noncitizens
- Annual Review of State-Level Immigration Policy Still Trending Pro-Immigrant
- The Government Doubles Down on Locking Up Immigrant Mothers and Children
- Insider Speaks Out Alongside Formerly Detained Mothers Seeking Protection in the U.S.
- Court Finds Federal Officers Can be Sued for Mistreatment of Immigrants in Detention
- Judge’s Order in Flores Should Signal the End of Family Detention
- White House Report on Improving Our Legal Immigration System: Too Little Too Late?
- Some 3-Year Work Permits Being Recalled by USCIS
- Appellate Court Hears Oral Argument in Texas v. United States
- U.S. Settles With 4-Year-Old U.S. Citizen They Wrongfully Deported
- Members of Congress Report on Texas Family Detention Center Visits
- Supreme Court Finds Conviction for Possession of a Sock Was Not a Deportable Offense
- Court Rejects Restrictionists’ Attempts to Derail Work Authorization for H-4 Spouses
- Immigration Appeals Court Reverses Position on Deportation Waivers
- Why DAPA Applications Were Not Accepted by USCIS on May 19, 2015
- Reports: Detention Doesn’t Deter Migrants and Refugees From Coming to United States
- Arpaio Faces Skeptical Judges In Lawsuit Challenging Obama’s Immigration Action
- Supreme Court to Decide Whether It’s Okay to Deprive a Person of His Day In Immigration Court
- No Justice For Family of Mexican Child Killed By U.S. Border Patrol Agent
- The Court Decision on Deferred Action Everyone Should Be Talking About
- Faith Leaders Visit Immigrant Detention Center as Mothers Begin Hunger Strike
- Immigration Agency Issues Long-Awaited Guidance on L-1B Visa Petitions
- Government Claims Children in Family Detention Centers Are Not Entitled to Protections
- Documenting Ongoing Border Patrol Abuses
- Immigration Action Provides Certain H-4 Spouses Work Authorization
- New Immigration Enforcement Policy Remains In Effect Despite Texas Lawsuit
- Supreme Court Hears Argument on Whether Government Must Justify Its Visa Denial
- The Detention of Children and Their Families is Still Unjust and Still Against the Law
- Unrepresented Children Still Being Fast-Tracked Through Immigration Hearings
- When is Possession of a Sock a Deportable Offense?
- U.S. Education of Foreign Students is Under Attack
- Do the President’s New Immigration Policies Really Mark the End of Secure Communities?
- How New Guidance Improves a Waiver Program to Limit Family Separations
- Five Things to Know About Deportation Relief for Some Immigrant Parents
- How Many Immigrants Could Be Eligible for Relief and Not Know It?
- Civil Rights Complaint Documents Government’s Failure to Properly Screen Asylum Seekers
- Third Federal Court Rejects Government Interpretation of ‘Admission’ into U.S.
- How USCIS Tried to Keep Out a Skilled Brazilian Steakhouse Worker
- How Can a Three Year Old Represent Himself in Court?
- Report Discloses Deportation of Central American Asylum Seekers
- Federal Court Refuses to Dismiss Case of U.S. Citizen Girl Who Was Deported
- Inspector General Falls Short in Documenting Border Detention Conditions
- Why Groups Are Suing the Government over Rushed Deportation Process for Mothers and Children
- Courts Continue to Reject Arizona Style Laws, Even as House Embraces SAFE Act
- Here Are Some of the Stories of Women Held at Artesia
- Why We are Suing the Government on Behalf of All Children Facing Deportation
- District Court Decides Some TPS Beneficiaries May Finally Become Lawful Permanent Residents
- SCOTUS Decides Immigrants Can “Age-Out” of Visa Petitions
- The DACA Renewal Process: Everything You Need to Know
- CBP Releases Report Critical of Agency, Issues Updated Use of Force Policy
- Summary Removal Procedures and Their Role in Rising Deportations
- New Data Show More Than Half a Million Immigrants Granted DACA
- Drop in Court-Ordered Deportations Means Little to Overall Deportation Numbers
- USCIS Releases Information About DACA Renewal Process
- Circuit Court Ruling Affirms Detainers Not Mandatory
- New Directive Clarifies Existing Use of Force Policy at CBP
- Customs and Border Protection Conceals Scathing Audit of Border Patrol’s Use of Force Policy
- What the DACA Renewal Process Should Look Like
- Petition Challenges DHS on Enforcement Priorities
- The Washington Post Exposes Sorry State of Immigration Courts
- Miranda-like Warning for Immigrants Argued in Ninth Circuit
- Why Is There a Disparity in DACA Application Rates Among Different Nationalities?
- Supreme Court Considers Restrictive Interpretation of Child Status Protection Act
- The Punishment Should Fit the Crime for Immigrants, Too
- Keeping CBP In Line With Proposed Reforms
- Understanding DACA's Education Requirement
- Supreme Court to Interpret Child Status Protection Act
- New York City Pilots Free Legal Representation in Immigration Court