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Federal Court Blocks City Ordinance That Penalizes Businesses Employing Undocumented Workers

file5301243444893.jpgThe Third Circuit Court of Appeals recently invalidated a city ordinance that prohibited businesses from employing undocumented immigrants. The court’s decision in Lozano v. City of Hazelton affirmed a 2010 order finding that federal immigration law preempted the ordinance, but drew on more recent U.S. Supreme Court cases addressing state-level immigration laws. The court granted a permanent injunction against enforcement of the law. Employers must abide by federal law regarding the verification of employees’ eligibility to work, but state and local governments cannot impose additional requirements or restrictions.

Hazelton, Pennsylvania enacted an ordinance in 2006 that made it unlawful for an employer to recruit, hire, or employ a person that the employer knows lacks work authorization.It required employers to register in the E-Verify program, and allowed a “safe harbor” for employers who use that program. Employers who violated the ordinance could be subject to sanctions, including business permit suspension. Multiple plaintiffs filed suit against the city in federal court, alleging that the ordinance was unlawful. A district judge granted a permanent injunction, finding that the ordinance was preempted by federal immigration law. The court further ruled that the ordinance violated the Due Process Clause of the Fourteenth Amendment. 42 U.S.C. § 1981. The Third Circuit affirmed the injunction in 2010.

The city appealed the case to the U.S. Supreme Court, which remanded it to the Third Circuit after it issued its ruling in Chamber of Commerce v. Whiting. That case involved an Arizona statute that prohibited employment of undocumented immigrants. Employers found to be in violation of this prohibition could have their business licenses suspended or revoked. The Supreme Court found that the statute dealt exclusively with state business licenses, a power granted to the states, and that it was therefore not preempted by federal law.

Before the Third Circuit could reconsider its ruling in Lozano, however, the Supreme Court ruled in Arizona v. United States. This case challenged Arizona’s SB 1070, the expansive and controversial immigration law passed by the state in 2010. The court struck down three of the four provisions challenged by the lawsuit, including one that made it a crime for an undocumented immigrant to seek or hold a job within the state. It found that this provision conflicted with federal immigration law, and was therefore preempted.

The Third Circuit affirmed its prior ruling regarding Hazelton’s ordinance. It distinguished it from the statute at issue in Whiting by looking at the main federal law governing the employment of immigrants, the Immigration Reform and Control Act of 1986 (IRCA). It found that Congress’ intent in IRCA was to avoid placing “undue burdens” on employers. Whiting involved a state law that fit within the federal I-9 and E-Verify systems, and therefore was not preempted. Hazelton’s ordinance, however, created hardships for employers, such as a business with employees in the city and elsewhere, that would have to follow multiple employment verification processes.

Immigration attorney Samuel C. Berger helps businesses petition to bring their immigrant employees to the U.S. We represent immigrants and prospective immigrants who seek visas to come to New York or New Jersey areas, or who have already call this area home. The immigration system can be complicated and confusing, and applying for benefits requires careful planning and a thorough understanding of the law. To schedule a confidential consultation to see how we can help you, please contact us today online or at (212) 380-8117.

More Blog Posts:

Immigration Authorities Raid New York Convenience Stores for Alleged Employment Violations, New York & New Jersey Immigration Lawyer Blog, June 27, 2013
Revised I-9 Form Became Mandatory for Employers on May 7, 2013, New York & New Jersey Immigration Lawyer Blog, May 29, 2013
Justice Department Sues Employer for Alleged Violations of I-9 Rules, New York & New Jersey Immigration Lawyer Blog, October 19, 2012
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