Author: Melissa A. Silver, XpertHR Legal Editor

Relying on the Supreme Court decision in Arizona, et al. v. United States, +2012 U.S. LEXIS 4872 (June 25, 2012), the 11th Circuit Court of Appeals recently issued decisions regarding the immigration laws in Georgia and Alabama.

In Georgia Latino Alliance for Human Rights (GLAHR), et al. v. Governor of Georgia, et al., +2012 U.S. App. LEXIS 17514 (11th Cir. August 20, 2012), the 11th Circuit ruled on two sections of Georgia's Illegal Immigration Reform and Enforcement Act of 2011 (H.B. 87) that were at issue. These two sections are as follows:

  1. Section 7, which creates three separate crimes for interactions with illegal aliens:
    1. Knowingly and intentionally transporting or moving an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the alien in the US;
    2. Concealing or harboring an illegal alien; and
    3. Inducing an illegal alien to enter into Georgia.
  2. Section 8, which authorizes Georgia law enforcement officers to investigate the immigration status of an individual if the officer has probable cause to believe the individual has committed another crime and that individual cannot provide one of the pieces of identification in the statute. Further, this section prohibits consideration of "race, color, or national origin" except to the extent permitted by the Constitutions of Georgia and of the US.

Following the reasoning in the US Supreme Court decision in Arizona, the court affirmed the district's decision that Section 7 is preempted by federal law. In particular, the court held that like the federal registration scheme addressed in Arizona, in the instant matter, Congress has provided a "full set of standards" to govern the unlawful transport and movement of aliens in the Immigration and Nationality Act (INA), § 1101 et seq. Therefore, because the INA already addresses criminal penalties for these actions, a state's law intruding in this area is preempted by federal law.

However, with respect to Section 8, which is similar to Section 2(B) of Arizona's immigration law (S.B. 1070), the court held that enforcement of this section did not conflict with federal law. The court reasoned that like Arizona's law, this law has built in limitations (i.e. the prohibition of consideration of race, color or national origin). Also, the court found that Section 8 was "less problematic" than the provision at issue in Arizona because here it is not mandatory for state officials to conduct an inquiry into immigration status whenever a detained individual cannot produce satisfactory identification.

On the same date of issuing its opinion in the Georgia case, in USA v. Alabama, et al., +2012 U.S. App. LEXIS 17516, the 11th Circuit delivered its ruling on several provisions of Alabama's Beason-Hammon Alabama Taxpayer and Citizen Protection Act (H.B. 56). The purpose of this legislation is to discourage illegal immigration within the state and maximize enforcement of federal immigration laws. The 11th Circuit ruled on the following ten sections of Alabama's law:

  1. Section 10, which creates a new state crime for an unlawfully present alien's willful failure to complete or carry an alien registration document.
  2. Section 11(a), which criminalizes an unauthorized alien's application for, solicitation of, or performance of work, whether as an employee or independent contractor, inside the state of Alabama.
  3. Section 12(a), which requires officers to determine a lawfully seized individual's immigration status when the officer has a reasonable suspicion that the seized individual is unlawfully present in the US.
  4. Section 13(a), which creates three new state crimes.
  5. Section 16, which disallows an employer's state tax deduction for wages and compensation paid to an alien unauthorized work in the US.
  6. Section 17, which labels as a discriminatory practice an employer's act of firing or failing to hire a US citizen or an alien authorized to work while the employer simultaneously employs or hires an alien unauthorized to work in the country.
  7. Section 18, which amends a state provision governing drivers' licenses to state that when a driver is found to be in violation of the statute which requires all drivers to possess a driver's license and display it upon the request of a proper state official a reasonable effort must be made within 48 hours to determine that driver's citizenship and, if an alien, whether the individual is permissibly present in the country.
  8. Section 27 prohibits state courts from enforcing a contract to which an unlawfully present alien is a party, provided that the other party "had direct or constructive knowledge" of the alien's unlawful presence and that performance of the contract would require the alien to remain in the state for more than 24 hours after its formation. This section does not contain limited exceptions.
  9. Section 28 provides a process for schools to collect data about the immigration status of students who enroll in public school.
  10. Section 30 prohibits unlawfully present aliens from entering, or attempting to enter, into a "business transaction" with the state or a political subdivision thereof.

Relying on the Arizona decision and its decision in GLAHR, the court held that the following sections were preempted by federal law and were thus struck down: 10, 11(a), 13(a), 16, 17, and 27. In the companion case of HICA, et al. v. Governor of Alabama, +2012 U.S. App. LEXIS 17544 (11th Cir. August 20, 2012) the court held that Section 28 violates the Equal Protection Clause of Constitution and thus dismissed the appeal as to this section as moot.

The court ruled, however, that the following sections were not preempted by federal law: 12(a), 18, and 30.

As with decision in Arizona, although the 11th Circuit struck down the portion of Alabama's law that imposed criminal penalties on unauthorized individuals who seek employment, employers must still comply with the Immigration Reform and Control Act (IRCA) by verifying the identity of their employees and that the employees are authorized to work in the US. Further, employers in Georgia and Alabama should be aware that if there is an inquiry into the immigration status of their foreign workers and they cannot demonstrate that they are lawfully in the US this could potentially expose an employer's unlawful employment practices and violations of the IRCA.

Therefore, employers need to be even more vigilant during the hiring process in order to ensure that their employees are authorized to work in the US.

Continue to check XpertHR on the latest news on this and other key HR compliance issues.

Additional Resources

Recruiting and Hiring > Immigration, Form I-9 and Work Visas

Legal Insight: Breakdown of the Immigration Reform and Control Act