The Supreme Court upheld the application of the Kansas state identity theft and benefit fraud statutes against unauthorized workers using fraudulent social security numbers on IRS Form W-4 and on the Form K-4 (Kansas version of the W-4)- Kansas v. Garcia (No. 17-834. Slip Op., March 3, 2020). For more information click here.
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful to hire an alien knowing that he or she is unauthorized to work in the United States. 8 U. S. C. §§1324a(a)(1), (h)(3). IRCA requires employers to comply with a federal employment verification system. §1324a(b). Using a federal work-authorization form (I–9), they “must attest” that they have “verified” that any new employee, regardless of citizenship or nationality, “is not an unauthorized alien” by examining approved documents.
In addition, under the IRCA, the information contained in, and appended to, I-9 forms may only be used for enforcement of the Immigration and Nationality Act and other federal laws. In addition, the IRCA expressly “preempt[s] any State or local law imposing civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” Kansas law, meanwhile, makes it a crime to commit “identity theft” or to engage in fraud to obtain a state benefit.”
In this case, three undocumented immigrants were prosecuted under state (Kansas) law for fraudulently using another person’s Social Security number in their work-authorization forms, including their I-9s. They were convicted, but the Kansas Supreme Court reversed, concluding that the “IRCA expressly prohibits States from using any information contained in an I-9 as the basis for a state-law prosecution (even if the same information is contained in other forms).” In their appeal, they argued that the state could not prosecute their fraud cases based on the personal information found in onboarding forms, because the biographical information (Name, DOB, SSN) was also used to establish work eligibility on the Form I-9.
The Supreme Court reasoned that general federal preemption of state laws designed to enforce federal immigration law, as well as regulations restricting employer’s use of the Form I-9 do not operate to prevent state prosecutions based on information, such as the social security number, that is also registered on a federal Form I-9.
Have questions about I-9 compliance? Contact our attorneys at (214) 672 2575 for a free consultation.
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