Supreme Court Makes It Easier for States to Prosecute Undocumented Workers
Author: David B. Weisenfeld, XpertHR Legal Editor
March 5, 2020
Undocumented workers are far more likely to face criminal prosecutions for identity theft under a new Supreme Court ruling. In Kansas v. Garcia, a divided Court ruled 5-4 that the Immigration Reform and Control Act (IRCA) does not block states from criminalizing such conduct. IRCA requires employers to verify that any new employee is not an unauthorized alien by examining approved documents.
Kansas had prosecuted three restaurant workers for identity theft for using false Social Security numbers on their job applications. All three had used another person's Social Security number on their Form I-9s, W-4s and K-4s (Kansas tax withholding form that is similar to the federal form).
The Kansas Supreme Court had sided with the restaurant workers, finding that IRCA expressly prohibits a state from using any information contained within an I-9 as the basis for a state law identity theft prosecution. But the US Supreme Court reversed that ruling.
It reasoned that nothing in IRCA supports limiting the prosecution of undocumented workers for using a false identity to establish their employment eligibility. While the Court acknowledged that IRCA contains a provision that preempts state law, it found that provision inapplicable.
"That (IRCA) provision applies only to the imposition of criminal or civil liability on employers and those who receive a fee for recruiting or referring prospective employees," wrote Justice Samuel Alito for the Court. "It does not mention state or local laws that impose criminal or civil sanctions on employees or applicants for employment."
In rejecting the workers' claims, Justice Alito added that IRCA certainly does not bar all state regulation regarding the "use of false documents… when an unauthorized alien seeks employment." The Court also noted that federal authorities played a role in all three cases.
In dissent, Justice Stephen Breyer wrote that Congress "made a deliberate choice not to impose criminal penalties on aliens who merely seek, or engage in, unauthorized employment." He said the majority was opening a "colossal loophole" in IRCA by permitting state prosecutions of these workers.
While the ruling is damaging for undocumented workers, it theoretically does not preclude a state from prosecuting employers for other kinds of fraud if they knowingly use false information provided by employees.