Can State Employment Agency Worker Verifications Be Trusted in Sanctuary Jurisdictions?

By Dan Cadman, April 18, 2017

A few days ago, I blogged about a healthcare workers union that has declared itself a sanctuary. I noted that unions hold a privileged position of trust in the federal immigration laws relating to employment verification and sanctions, and suggested that a union that declares itself a sanctuary dedicated to helping hide illegal aliens from federal detection has by its actions proved incapable of maintaining that position of trust. The appropriate response is twofold:

  1. Employer associations holding collective bargaining contracts with that union need to put it on notice that the contracts will be renegotiated, since it is the employers who will bear the burden of the union's declaration (failing, that is, prosecution of union officials for harboring and shielding illegal aliens); and

  2. The Department of Homeland Security needs to take regulatory steps to vitiate the effect of such scofflaw declarations.

I've been thinking about this matter since then, specifically the fact that unions aren't the only ones holding such privileged positions of trust under the employment verification statute.

Section 274A(a)(5) says, in relevant part, that employers can rely on a certification from a state employment agency that it has verified an individual's right to be and work in the United States, instead of being obliged to perform their own verifications.

But what if the state — or a local government operating under the laws of the state — has declared itself a sanctuary and actively takes steps to render it almost impossible to determine an individual's status? For instance, in New York City, Chicago, and elsewhere, municipalities have begun issuing official identity documents to all individuals without regard to status and furthermore ensuring that neither the documents themselves or the databases behind them contain enough biographic data to permit systems matching to see if an individual might be an alien unlawfully in the country. They have done this with the specifically avowed purpose of defeating federal immigration enforcement efforts. (See here, here, here, and here.)

Hopefully federal judges in the district courts and appellate circuits, who have found such favor recently in using officials' prior words against them when ruling on the motives behind certain actions, as the Ninth Circuit did with the Trump executive order suspending refugee admissions and entry by certain nationalities, will take note of this.

Is there any reason to trust state employment agencies (or local government employment agencies functioning under the umbrella of state law) to perform adequate verifications if they are part of a "sanctuary" government? Is there any reason that the federal government should deem "identity" documents lacking basic biographic data sufficient for purposes of confirming the identity of an individual, as is required in the two-step process (first, a document establishing identity; second, a document proving the right to work) required by the employment verification laws?

The answer to either of these questions by any reasoned person must be a resounding "no." It would be cleaner and better by far for Congress to step in with amending legislation (both for state agencies and for the unions I previously blogged about) that debars self-declared sanctuary entities from holding these privileged positions. However, I will admit I have little faith in the ability of this Republican-controlled Congress to do much, as long as filibusters remain the rule in the Senate.

The way forward, then, is for DHS to promulgate a rule saying that identification cards issued by a state or local government that fail to provide key biographic data, or behind which such information has been either deleted or not collected for maintenance in a database, is insufficient to establish identity for purposes of work authorization. This can be done by amending the regulation at 8 CFR 274a.2(b)(1)(v)(B).

I am no fan of government by executive direction, having had my eyes opened wide by the Obama administration's high-handed and imperious manipulations. But unless and until Congress finds its mojo, using regulations to defeat sanctuaries is far preferable to paralysis.