While the Supreme Court held that several provisions of AZ’s immigration law were preempted by federal law in the landmark decision of Arizona v. United States, employers should not be misled into believing that all state law immigration laws have been invalidated.

The provisions of the law which were struck down were those of a criminal nature (i.e., making it a misdemeanor for unauthorized aliens to apply for work, to fail to carry valid immigration documents as well as a provision for warrantless arrests of persons suspected of committing a deportable offense).  Indiana’s immigration law also has both employment-related and law enforcement-related immigration provisions as well.

Indiana’s law enforcement provisions have been enjoined pending the Supreme Court’s decision (i.e. warrantless arrests under certain circumstances and the prohibition against the use of consular IDs).  While those provisions may ultimately fail, the provisions requiring mandatory use of E-Verify for state and local governments, as well as the safe harbor provisions for private employer’s who utilize E-Verify for new hires, were not challenged by the ACLU. 

Despite the Supreme Court’s most recent ruling, Employers should continue to utilize E-Verify for new hires to avoid state tax penalties and the repayment of unemployment benefits associated with unauthorized aliens.