Immigration law bulletin

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© 2011 School of Government. The University of North Carolina at Chapel Hill
immigration law Bulletin No. 3 | july 2011
What Does the 2011 E-Verify
Legislation Mean for Local
Governments and Employers?
Sejal Zota
The 2011 General Assembly enacted legislation requiring counties, municipalities, and busi-nesses
that employ 25 or more workers to use the federal E-Verify program to verify the work
authorization of new hires. This bulletin first describes the provisions of the new legislation,
which will be phased in over a two-year period. Second, the bulletin provides information on
the requirements of E-Verify and describes how the program works. Third, the bulletin dis-cusses
the impact of a recent U.S. Supreme Court decision and whether the new legislation may
conflict with federal law.
What Does the New Legislation Require?
The new legislation includes three main components: (1) a requirement that certain employers
use the federal E-verify system, (2) a new system for filing complaints about potential viola-tors,
and (3) penalties for noncompliance. The law is included in the appendix at the end of this
bulletin.
New Requirements for Counties, Municipalities, and Private Employers
The new legislation, S.L. 2011-263 (H 36), requires counties and municipalities to register and
participate in the federal E-Verify program to verify the work authorization of new hires, effec-tive
October 1, 2011.1 The verification requirement does not apply to existing employees.
Private employers that employ 25 or more employees in North Carolina must also verify the
work authorization of new hires through the E-Verify program.2 Private employers must retain
the record of the work verification through the duration of the worker’s employment and for one
year after the employment has ceased. The verification requirement does not apply to a seasonal
temporary employee employed for 90 days or less during a 12-month period.
The author is a School of Government attorney who works in the area of immigration law.
1. S.L. 2011-263 (H 36) (enacting new N.C. Gen. Stat. (hereinafter G.S.) § 153A-99.1 and
G.S. 160A-169.1).
2. S.L. 2011-263 (enacting new G.S. 64-26).
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© 2011 School of Government. The University of North Carolina at Chapel Hill
The new requirements are effective October 1, 2012, for private employers that employ 500 or
more employees; January 1, 2013, for private employers that employ 100 or more but less than
500 employees; and July 1, 2013, for private employers that employ 25 or more but less than 100
employees.
Complaints
The legislation permits any individual with a good faith belief that a private employer is not
complying with the verification requirement to file a complaint with the North Carolina Com-missioner
of Labor (the Commissioner).3 The law does not appear to provide the Commissioner
with authority to investigate complaints against state agencies, counties, municipalities, or other
government entities. The Commissioner must investigate any complaint of noncompliance not
based solely on race, religion, gender, ethnicity, or national origin.4 If, after an investigation, the
Commissioner determines the complaint is not false or frivolous, the Commissioner must hold
a hearing to determine whether the private employer has complied with the law’s verification
requirements.5
Penalties
For a first-time violation, the private employer must file a signed sworn affidavit that the private
employer has requested a verification of work authorization through E-Verify. The affidavit must
be filed with the Commissioner within three business days of the finding of noncompliance. The
failure to file a timely affidavit will result in a civil penalty of $10,000.6
For a second violation, private employers face a flat fine of $1,000 in addition to the affida-vit
requirement.7 For all subsequent violations, private employers face a $2,000 fine for each
employee the employer failed to screen in addition to the affidavit requirement.8 A private
employer has the right to file an appeal within 15 days of the Commissioner’s order.9 The leg-islation
provides the Commissioner with rule-making authority necessary to implement this
legislation.10
What Is the E-Verify Program, and What Does It Require?
E-Verify is a web-based system operated by the Department of Homeland Security (DHS) in
partnership with the Social Security Administration (SSA) that allows participating employ-ers
to electronically verify the employment authorization of newly hired employees. Since 2007
the North Carolina General Statutes have required all state agencies, departments, institutions,
3. S.L. 2011-263 (enacting new G.S. 64-28).
4. S.L. 2011-263 (enacting new G.S. 64-29). The legislation provides the Commissioner with authority
to subpoena employment records that relate to recruitment, hiring, employment, termination policies or
practices, or acts of employment as part of the investigation of a valid complaint. The Commissioner may
also seek the assistance of the State Bureau of Investigation in investigating a complaint.
5. S.L. 2011-263 (enacting new G.S. 64-30).
6. S.L. 2011-263 (enacting new G.S. 64-31).
7. S.L. 2011-263 (enacting new G.S. 64-32).
8. S.L. 2011-263 (enacting new G.S. 64-33).
9. S.L. 2011-263 (enacting new G.S. 64-36).
10. S.L. 2011-263 (enacting new G.S. 64-37).
2011 E-Verify Legislation 3
© 2011 School of Government. The University of North Carolina at Chapel Hill
universities, and local education agencies to use E-Verify to check the work authorization of new
employees.11
An employer may not initiate verification procedures through E-Verify before an employee
has been hired and the Form I-9 completed. An employer may not use E-Verify to re-verify the
authorization of an existing employee unless the employer has been awarded a federal contract.
Employers must also continue to comply with applicable civil rights laws12 by not discriminating
unlawfully against any individual in hiring, firing, or recruitment or referral practices because
of the individual’s national origin or, in the case of a protected individual (as defined by federal
law), his or her citizenship status.
The E-Verify program is provided to employers free of charge by the DHS.13 To participate in
E-Verify, an employer or government entity must enter into a written agreement, called a memo-randum
of understanding (MOU), with the DHS and SSA.14 The MOU sets up a contractual
obligation, whether the employer is voluntarily electing to use the program or is required to use
it under North Carolina law.
Employers must agree to the terms of the MOU and take the following steps with respect to
each new employee:
••The employer must first complete an I-9 form, Employment Eligibility Verification. E-Verify
does not replace the legal requirement to complete and retain these forms.
••The employer then enters the new worker’s information from the I-9 form into E-Verify, and
the worker’s information is checked against data contained in federal databases.
•• If the data and the information being compared do not match, an employer will receive
a “tentative nonconfirmation” notice. In that case, the employer must promptly provide
the employee with written referral instructions on how to challenge the information
mismatch.15 The employee then has eight workdays to contact the appropriate federal
agency (either the SSA or DHS) to resolve the discrepancy.
•• If the worker contacts the SSA or DHS to resolve the tentative nonconfirmation, the
employer is prohibited from terminating or otherwise taking adverse action against the
worker (including denying, reducing, or extending work hours; delaying or preventing
training; requiring an employee to work in poorer conditions; or otherwise subjecting the
employee to anything indicating the employee is unauthorized to work) while awaiting a
final resolution from the government agency, even if resolving the matter takes longer than
the normal resolution time of ten business days.
•• If the employee does not contest the charge within eight days, the employer can find the
employee is not work authorized and terminate employment. E-Verify, however, does not
11. G.S. 126-7.1.
12. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2010) and 8 U.S.C. § 1324b (2010).
13. The enrollment website is https://e-verify.uscis.gov/enroll/.
14. For a sample MOU, see www.uscis.gov/files/nativedocuments/E-Verify%20DA%20MOU
%20111609-%20Final_Rev1.pdf.
15. According to the Social Security Administration, a mismatch may be due to a typographical error,
failure of the employee to report a name change, or submission of a blank or incomplete Form W-2. In a
December 2009 evaluation of E-Verify commissioned by the Department of Homeland Security, it was
estimated that around 1 percent of authorized workers are not initially found to be employment autho-rized.
See Westat, Findings of the E-Verify Program (Rockville, MD: Westat, 2007), 30, www.uscis.gov/
USCIS/E-Verify/E-Verify/Final%20E-Verify%20Report%2012-16-09_2.pdf.
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© 2011 School of Government. The University of North Carolina at Chapel Hill
require termination if the employee opts not to contest a charge. If an employer chooses
not to terminate the employee, the employer must notify the DHS of this decision.
•• If the SSA or DHS resolves the matter and issues a “final nonconfirmation” notice
indicating the person is not lawfully authorized to work, the employer may terminate the
worker’s employment. If an employer continues to employ a worker after the employer has
received a final nonconfirmation, the employer is subject to a rebuttable presumption that
it has knowingly employed an unauthorized alien in violation of federal law.
Resources to assist employers with E-Verify, including training, webinars, and a dedicated hot-line,
are available from the DHS.16
Will the Supreme Court’s Decision in Chamber of Commerce
of U.S. v. Whiting Affect the New Legislation?
Until recently there was a question as to whether state and local governments could legally
require private employers or government contractors to use E-Verify or whether doing so would
violate federal law. On May 26, 2011, the United States Supreme Court issued its decision on the
matter in Chamber of Commerce of U.S. v. Whiting, holding that a 2007 Arizona law prohibiting
the employment of unauthorized workers did not violate federal law.17
In addition to prohibiting the employment of unauthorized workers, the Legal Arizona
Workers Act of 2007 requires all employers in the state of Arizona to use E-Verify to confirm
that their employees are legally authorized to work.18 The question the Court considered was
whether federal immigration law “preempts” or takes precedence over the Arizona law. A state
or local law is preempted and invalidated when Congress has asserted its exclusive authority in
an area or the law conflicts with federal legislation.19 The Court ruled that Arizona’s require-ment
that all employers participate in E-Verify was not preempted by federal law.
As discussed above, E-Verify is structured as a voluntary program operated by the DHS and
SSA. The DHS encourages the use of E-Verify, but the agency is not allowed to require employ-ers,
other than federal agencies and contractors, to use it.20 The Court concluded that the federal
law did not, however, limit state action; there was no indication that Congress intended to
prevent the states from requiring participation in E-Verify. The Court further found no conflict
between Arizona’s E-Verify requirement and federal law, as the only consequence21 of not using
16. E-Verify resources are available here: www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b
9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=
75bce2e261405110VgnVCM1000004718190aRCRD.
17. ____ U.S. ____ , ____ S. Ct. ____ , 179 L. Ed.2d 1031 (2011).
18. Ariz. Rev. Stat. Ann. § 23-214(A) (West Supp. 2010).
19. See, e.g., De Canas v. Bica, 424 U.S. 351 (1976). Preemption is a doctrine rooted in the Supremacy
Clause of the U.S. Constitution. It has come to mean that the federal government, in exercising any of the
powers enumerated in the Constitution, trumps a conflicting or inconsistent state exercise of power. For
a more detailed discussion of preemption, see Sejal Zota, “Do State and Local Immigration Laws Violate
Federal Law?” Popular Government, Spring/Summer 2009, 22.
20. Pub. L. No. 104-208, § 402(a), 110 Stat. 3009-656 (1996) (“the Secretary of Homeland Security may
not require any person or other entity to participate in [E-Verify].”).
21. When first enacted, the Arizona law contained no penalty for failure to comply with the E-Verify
requirement. The law was later amended to include penalties such as the loss of state-allocated economic
2011 E-Verify Legislation 5
© 2011 School of Government. The University of North Carolina at Chapel Hill
E-Verify is the same under both laws—an employer forfeits the rebuttable presumption that the
employer did not knowingly employ an unauthorized alien.22
North Carolina’s new law is similar to the Arizona law in that it requires local governments
and certain private employers to participate in the E-Verify program. It differs from the version
of the Arizona law considered by the Court in Whiting with respect to penalties—under the
Arizona law, employers faced no sanction for failure to comply with the E-Verify requirement
but under the North Carolina law, certain employers may face civil penalties for failing to do so.
The Court in Whiting noted this lack of penalty in Arizona as support for finding no conflict
between that state’s E-Verify requirement and federal law. It is unclear from the opinion whether
this was a significant consideration for the Court, but it does raise a possibility that the imposi-tion
of civil penalties in North Carolina conflicts with federal law.
development incentives, but because those penalties were not part of the statute when the lawsuit was
initially filed, the U.S. Supreme Court did not address their interaction with federal law. Whiting, ____
U.S. at ____ n. 10, ____ S. Ct. at ____ n. 10, 179 L. Ed.2d at 1056 n. 10.
22. Ariz. Rev. Stat. Ann. § 23–212(I) (West Supp. 2010) (“[P]roof of verifying the employment autho-rization
of an employee through the E-Verify program creates a rebuttable presumption that an employer
did not knowingly employ an unauthorized alien.”).
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6 Immigration Law Bulletin No. 3 | July 2011
© 2011 School of Government. The University of North Carolina at Chapel Hill
Apendix. S.L. 2011-263 (H 36)
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
SESSION LAW 2011-263
HOUSE BILL 36
*H36-v-3*
AN ACT TO REQUIRE COUNTIES, CITIES, AND EMPLOYERS TO USE THE FEDERAL
E-VERIFY PROGRAM TO VERIFY THE WORK AUTHORIZATION OF NEWLY
HIRED EMPLOYEES.
The General Assembly of North Carolina enacts:
SECTION 1. Chapter 64 of the General Statutes is amended by adding a new
Article to read:
"Article 1.
Various Provisions Related to Aliens."
SECTION 2. G.S. 64-1 through G.S. 64-5 are recodified as Article 1 of Chapter 64
of the General Statutes, as created by Section 1 of this act.
SECTION 3. Chapter 64 of the General Statutes is amended by adding a new
Article to read:
"Article 2.
"Verification of Work Authorization.
"§ 64-25. Definitions.
The following definitions apply in this Article:
(1) Commissioner. – The North Carolina Commissioner of Labor.
(2) Employ. – Hire an employee.
(3) Employee. – Any individual who provides services or labor for an employer
in this State for wages or other remuneration.
(4) Employer. – Any person, business entity, or other organization that transacts
business in this State and that employs 25 or more employees in this State.
This term does not include State agencies, counties, municipalities, or other
governmental bodies.
(5) E-Verify. – The federal E-Verify program operated by the United States
Department of Homeland Security and other federal agencies, or any
successor or equivalent program used to verify the work authorization of
newly hired employees pursuant to federal law.
(6) Unauthorized alien. – As defined in 8 U.S.C. § 1324a(h)(3).
"§ 64-26. Verification of employee work authorization.
(a) Employers Must Use E-Verify. – Each employer, after hiring an employee to work
in the United States, shall verify the work authorization of the employee through E-Verify.
(b) Employer Preservation of E-Verify Forms. – Each employer shall retain the record
of the verification of work authorization required by this section while the employee is
employed and for one year thereafter.
(c) Exemption. – Subsection (a) of this section shall not apply with respect to a seasonal
temporary employee who is employed for 90 or fewer days during a 12-consecutive-month
period.
"§ 64-27. Commissioner of Labor to prepare complaint form.
(a) Preparation of Form. – The Commissioner shall prescribe a complaint form for a
person to allege a violation of G.S. 64-26. The form shall clearly state that completed forms
may be sent to the Commissioner.
(b) Certain Information Not Required. – The complainant shall not be required to list
the complainant's social security number on the complaint form or to have the complaint
notarized.
"§ 64-28. Reporting of complaints.
2011 E-Verify Legislation 7
© 2011 School of Government. The University of North Carolina at Chapel Hill
S.L. 2011-263 (H 36) (continued)
Page 2 Session Law 2011-263 SL2011-0263
(a) Filing of Complaint. – Any person with a good faith belief that an employer is
violating or has violated G.S. 64-26 may file a complaint with the Commissioner setting forth
the basis for that belief. The complaint may be on a form prescribed by the Commissioner
pursuant to G.S. 64-27 or may be made in any other form that gives the Commissioner
information that is sufficient to proceed with an investigation pursuant to G.S. 64-29. Nothing
in this section shall be construed to prohibit the filing of anonymous complaints that are not
submitted on a prescribed complaint form.
(b) False Statements a Misdemeanor. – A person who knowingly files a false and
frivolous complaint under this section is guilty of a Class 2 misdemeanor.
"§ 64-29. Investigation of complaints.
(a) Investigation. – Upon receipt of a complaint pursuant to G.S. 64-28 that an
employer is allegedly violating or has allegedly violated G.S. 64-26, the Commissioner shall
investigate whether the employer has in fact violated G.S. 64-26.
(b) Certain Complaints Shall Not Be Investigated. – The Commissioner shall not
investigate complaints that are based solely on race, religion, gender, ethnicity, or national
origin.
(c) Assistance by Law Enforcement. – The Commissioner may request that the State
Bureau of Investigation assist in investigating a complaint under this section.
(d) Subpoena for Production of Documents. – The Commissioner may issue a subpoena
for production of employment records that relate to the recruitment, hiring, employment, or
termination policies, practices, or acts of employment as part of the investigation of a valid
complaint under this section.
"§ 64-30. Actions to be taken; hearing.
If, after an investigation, the Commissioner determines that the complaint is not false and
frivolous:
(1) The Commissioner shall hold a hearing to determine if a violation of
G.S. 64-26 has occurred and, if appropriate, impose civil penalties in
accordance with the provisions of this Article.
(2) If, during the course of the hearing required by subdivision (1) of this
section, the Commissioner concludes that there is a reasonable likelihood
that an employee is an unauthorized alien, the Commissioner shall notify the
following entities of the possible presence of an unauthorized alien:
a. United States Immigration and Customs Enforcement.
b. Local law enforcement agencies.
"§ 64-31. Consequences of first violation.
(a) Affidavit Must Be Filed. – For a first violation of G.S. 64-26, the Commissioner
shall order the employer to file a signed sworn affidavit with the Commissioner within three
business days after the order issued pursuant to this subsection is issued. The affidavit shall
state with specificity that the employer has, after consultation with the employee, requested a
verification of work authorization through E-Verify.
(b) Effect of Failure to File Affidavit. – If an employer fails to timely file an affidavit
required by subsection (a) of this section or by G.S. 64-32 or G.S. 64-33, the Commissioner
shall order the employer to pay a civil penalty of ten thousand dollars ($10,000).
"§ 64-32. Consequences of second violation.
For a violation of G.S. 64-26 that occurs after an order has been issued pursuant to
G.S. 64-31, the Commissioner shall order the measures required by G.S. 64-31(a) and shall also
order the employer to pay a civil penalty of one thousand dollars ($1,000), regardless of the
number of required employee verifications the employer failed to make.
"§ 64-33. Consequences of third or subsequent violation.
For a violation of G.S. 64-26 that occurs after an order has been issued pursuant to
G.S. 64-32, the Commissioner shall order the measures required by G.S. 64-31(a), and shall
also order the employer to pay a civil penalty of two thousand dollars ($2,000) for each
required employee verification the employer failed to make.
"§ 64-34. Commissioner to maintain copies of orders.
The Commissioner shall maintain copies of orders issued pursuant to G.S. 64-31, 64-32,
and 64-33, and shall maintain a database of the employers and business locations that have a
violation of G.S. 64-26 and make the orders available on the Commissioner's Web site.
"§ 64-35. Work authorization shall be verified through the federal government.
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© 2011 School of Government. The University of North Carolina at Chapel Hill
SL2011-0263 Session Law 2011-263 Page 3
When investigating a complaint under this Article, the Commissioner shall verify the work
authorization of the alleged unauthorized alien with the federal government pursuant to 8
U.S.C. § 1373(c). The Commissioner shall not attempt to independently make a final
determination of whether an alien is authorized to work in the United States.
"§ 64-36. Appeal of Commissioner's order.
A determination by the Commissioner pursuant to this Article shall be final, unless within
15 days after receipt of notice thereof by certified mail with return receipt, by signature
confirmation as provided by the U.S. Postal Service, by a designated delivery service
authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the
employer charged with the violation takes exception to the determination, in which event final
determination shall be made in an administrative proceeding pursuant to Article 3 of Chapter
150B of the General Statutes and in a judicial proceeding pursuant to Article 4 of Chapter 150B
of the General Statutes.
"§ 64-37. Rules.
The Commissioner may adopt rules needed to implement this Article.
"§ 64-38. Article does not require action that is contrary to federal or State law.
This Article shall not be construed to require an employer to take any action that the
employer believes in good faith would violate federal or State law."
SECTION 4. Article 5 of Chapter 153A of the General Statutes is amended by
adding a new section to read:
"§ 153A-99.1. County verification of employee work authorization.
(a) Counties Must Use E-Verify. – Each county shall register and participate in
E-Verify to verify the work authorization of new employees hired to work in the United States.
(b) E-Verify Defined. – As used in this section, the term 'E-Verify' means the federal
E-Verify program operated by the United States Department of Homeland Security and other
federal agencies, or any successor or equivalent program used to verify the work authorization
of newly hired employees pursuant to federal law.
(c) Nondiscrimination. – This section shall be enforced without regard to race, religion,
gender, ethnicity, or national origin."
SECTION 5. Article 7 of Chapter 160A of the General Statutes is amended by
adding a new section to read:
"§ 160A-169.1. Municipality verification of employee work authorization.
(a) Municipalities Must Use E-Verify. – Each municipality shall register and participate
in E-Verify to verify the work authorization of new employees hired to work in the United
States.
(b) E-Verify Defined. – As used in this section, the term 'E-Verify' means the federal
E-Verify program operated by the United States Department of Homeland Security and other
federal agencies, or any successor or equivalent program used to verify the work authorization
of newly hired employees pursuant to federal law.
(c) Nondiscrimination. – This section shall be enforced without regard to race, religion,
gender, ethnicity, or national origin."
S.L. 2011-263 (H 36) (continued)
2011 E-Verify Legislation 9
© 2011 School of Government. The University of North Carolina at Chapel Hill
Page 4 Session Law 2011-263 SL2011-0263
SECTION 6. Sections 4, 5, and 6 of this act become effective October 1, 2011.
The remainder of this act becomes effective in accordance with the following schedule:
(1) October 1, 2012, for employers that employ 500 or more employees.
(2) January 1, 2013, for employers that employ 100 or more but less than 500
employees.
(3) July 1, 2013, for employers that employ 25 or more but less than 100
employees.
In the General Assembly read three times and ratified this the 18th day of June,
2011.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Thom Tillis
Speaker of the House of Representatives
s/ Beverly E. Perdue
Governor
Approved 4:50 p.m. this 23rd day of June, 2011
S.L. 2011-263 (H 36) (continued)