Can Virginia enforce its ban on hiring unauthorized aliens by getting a court injunction against the employer?

Plain-English summary

Delegate Thomas Rust noticed something interesting. Virginia law (§ 40.1-11.1) makes it a Class 1 misdemeanor for an employer to knowingly hire someone who cannot show eligibility documents. The general understanding was that federal law preempted enforcement of that misdemeanor. But § 40.1-49.4(F)(2) lets the Commissioner of Labor and Industry petition a circuit court to enjoin any Title 40.1 violation. Could the Commissioner use that injunction route to stop unauthorized-alien hiring without running into preemption? Delegate Rust's intuition was that an injunction might not count as a "civil or criminal sanction" under 8 U.S.C. § 1324a(h)(2).

AG Cuccinelli closed that loophole. He laid out the Supremacy Clause framework, walked through express, field, and conflict preemption, and concluded that the federal Immigration Reform and Control Act of 1986 (IRCA) is a comprehensive scheme establishing federal dominance over employer enforcement. Section 1324a(h)(2) expressly preempts state laws "imposing civil or criminal sanctions … upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens," with one carve-out for "licensing and similar laws."

Then the AG addressed the central question: what counts as a "sanction"? He pulled the dictionary definitions ("a penalty or coercive measure" / "a court order commanding or preventing an action") and noted that federal courts routinely describe injunctions as sanctions. The Supreme Court did so in CIBA Corp. v. Weinberger and Retail Clerks Int'l Assoc. v. Schermerhorn. The Ninth Circuit, the Second Circuit, and the Eighth Circuit had each used the same vocabulary. So a § 40.1-49.4(F)(2) injunction against an employer for hiring unauthorized aliens would be a civil sanction within § 1324a(h)(2) and would be preempted. The Commissioner could still notify an employer that it appears to be in violation of federal law and refer matters to U.S. Immigration and Customs Enforcement; he just could not use the state injunction power as an end-run around federal preemption.

Currency note

This opinion was issued in 2009 (released February 2010). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The U.S. Supreme Court issued Chamber of Commerce v. Whiting, 563 U.S. 582 (2011), addressing the licensing-laws carve-out, and Arizona v. United States, 567 U.S. 387 (2012), expanding preemption of state immigration enforcement. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is IRCA's preemption clause?
A: 8 U.S.C. § 1324a(h)(2) provides that the federal employer-sanctions section preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."

Q: Why does an injunction count as a sanction?
A: Both the legal dictionary and the federal courts treat civil injunctions as sanctions. The AG cited cases from the U.S. Supreme Court (CIBA, Retail Clerks) and three federal circuits (Second, Eighth, Ninth) describing injunctions as sanctions in various enforcement contexts. The category is broader than money penalties.

Q: What about the "licensing and similar laws" carve-out?
A: That clause permits states to use professional licensing to address immigration violations. Courts were divided in 2010 on how narrowly to read it; Lozano v. City of Hazleton read it narrowly, Chicanos Por La Causa v. Napolitano read it more broadly. The Supreme Court later resolved much of that in 2011.

Q: What can a state still do?
A: The Commissioner of Labor and Industry could notify an employer of an apparent IRCA violation and report it to U.S. Immigration and Customs Enforcement. The state just could not directly enforce a hiring ban with civil or criminal penalties or injunctions.

Background and statutory framework

The Supremacy Clause (U.S. Const. art. VI, cl. 2) makes federal law supreme over conflicting state law. Preemption doctrine recognizes three flavors: express (Congress says so), field (federal regulation is so pervasive that there is no room left for state law), and conflict (state and federal law cannot coexist in operation). IRCA, codified at 8 U.S.C. § 1324a, is the centerpiece of federal employer sanctions. Section 1324a(h)(2) is the express preemption clause.

Virginia's Title 40.1 governs labor and industry. Section 40.1-11.1 made knowing employment of an unauthorized alien a Class 1 misdemeanor. Section 40.1-49.4(F)(2) gave the Commissioner authority to seek injunctions against "any violation" of the title. The AG's analysis disposed of the workaround by treating the injunction as the same kind of "sanction" that the criminal statute attempts to impose.

Citations

• 8 U.S.C. § 1324a(h)(2) (IRCA preemption clause)
• Va. Code Ann. § 40.1-11.1 (state-law prohibition on hiring unauthorized aliens)
• Va. Code Ann. § 40.1-49.4(F)(2) (Commissioner's injunction authority)
• Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (IRCA as comprehensive scheme)
• Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007) (narrow reading of licensing carve-out)
• Chicanos Por La Causa v. Napolitano, 558 F.3d 856 (9th Cir. 2009) (broader reading of licensing carve-out)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/09-071-Rust.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

February 2, 2010

The Honorable Thomas Davis Rust
Member, House of Delegates
P.O. Box 406
Richmond, Virginia 20170

Dear Delegate Rust:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether federal law would preempt Virginia law imposing a "civil or criminal sanction" for hiring unauthorized aliens.[1] Specifically, you ask whether federal law preempts § 40.1-11.1, which prohibits the hiring of an unauthorized alien and whether the Commissioner of Labor and Industry may seek an injunction prohibiting the hiring of unauthorized aliens pursuant to § 40.1-49.4(F)(2).

Response

It is my opinion that federal law governing the employment of unauthorized aliens explicitly and implicitly preempts any Virginia law that would impose civil or criminal sanctions upon persons employing such aliens. Further, it is my opinion that imposition of an injunction constitutes a civil sanction which is preempted by federal law.

Background

Section 40.1-6 designates the powers and duties of the Commissioner of Labor and Industry (the "Commissioner").[2] Section 40.1-11.1 declares unlawful the employment of unauthorized aliens, but it is your understanding that the enforcement of § 40.1-11.1 is preempted by 8 U.S.C. § 1324a(h)(2). However, you note that § 40.1-49.4(F)(2) authorizes the Commissioner to petition a circuit court to enjoin any violation of Title 40.1. You suggest the Commissioner could use such authority to petition the court to enjoin a violation of § 40.1-11.1 for persons hiring unauthorized aliens. You further suggest that such action effectively would circumvent the federal law because an injunctive remedy would not constitute a civil or criminal sanction.

Applicable Law and Discussion

I. The Supremacy Clause and Federal Preemption

The Supremacy Clause of the Constitution of the United States declares that the "Constitution, and the Laws of the United States" "shall be the supreme Law of the Land," notwithstanding the laws of any state to the contrary.[3] Therefore, to the extent that state or local laws or ordinances conflict with or are contrary to federal law, they are preempted by federal law. Moreover, in many cases, even where a state or local law or ordinance occupies the same field of law, to the extent that a federal law dominates that field, the state or local law is preempted.[4]

Several distinct doctrines have developed in Supremacy Clause jurisprudence.[5] First, "'[e]xpress preemption' applies where Congress explicitly declares that a federal law is intended to supersede state law."[6] A second doctrine, implied preemption, takes two forms, field preemption and conflict preemption.[7] Field preemption exists "if federal law so thoroughly occupies a legislative field 'as to make reasonable the inference that Congress left no room for the States to supplement it.'"[8] Conflict preemption acts to void any state statute or local ordinance to the extent it conflicts with a federal statute.[9] Conflict preemption recognizes that "to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes."[10]

It is "an established principle that an intention of the Congress of the United States to exclude the states from exerting their police power must be clearly manifested."[11] In addition, Congress may limit its preemption of state and local regulation of a particular field.[12] When Congress chooses to limit its preemption, state regulation outside of the limitation is not forbidden or replaced.[13] However, where a field of law traditionally has not been the exclusive province of the states, such as in the area of immigration law, field preemption by federal law can be implicit, despite a narrow limitation.[14]

II. The Immigration Reform and Control Act of 1986

Congress has asserted federal authority over immigration and naturalization of aliens and their employment.[15] The federal Immigration Reform and Control Act of 1986 ("IRCA")[16] presents a "comprehensive scheme prohibiting the employment of illegal aliens in the United States."[17] IRCA "forcefully" makes combating the employment of illegal aliens central to immigration law,[18] which "is plainly a field in which the federal interest is dominant."[19] IRCA has established an extensive employment verification system to prevent employment of illegal aliens.[20] To enforce this public policy, "IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work."[21] Federal immigration law distinguishes among various categories of visas thereby determining which noncitizens legally are authorized to work in the United States.[22] "Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening [the] explicit … policies" mandated by IRCA.[23] An employee would have to provide false documentation to the prospective employer or the employer would have to fail in his duty to check the employee's documentation. If an employer unknowingly hires an unauthorized alien, he must discharge the alien upon discovery of the unauthorized status.[24] Employers who violate IRCA are subject to civil fines.[25]

As part of the "comprehensive scheme" to combat the employment of illegal aliens, IRCA provides that "[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."[26] Therefore, Congress clearly has demonstrated its intent to preempt state and local laws imposing civil or criminal sanctions upon persons or companies that employ or recruit unauthorized aliens or accept a fee to refer such aliens for employment, except for licensing and similar laws.

III. Injunctive Relief and Federal Preemption

In 8 U.S.C. § 1324a(h)(2), Congress explicitly "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."[27] A civil injunction is "[a] court order commanding or preventing an action."[28] A "sanction" is "[a] penalty or coercive measure that results from failure to comply with a law, rule, or order."[29] Injunctions commonly are understood to constitute a sanction.[30] Therefore, if granted, a civil injunction to enforce Virginia's statute prohibiting the hiring of unauthorized aliens would constitute a sanction, which explicitly is preempted by 8 U.S.C. § 1324a(h)(2).[31]

Although § 40.1-49.4(F)(2), empowers the Commissioner to petition a circuit court to enjoin any violation of Title 40.1, he may not circumvent the federal preemption simply by seeking to enjoin an employer from hiring unauthorized aliens. The Commissioner may not obtain an injunction because such an action is a civil sanction that is prohibited, i.e. preempted, by IRCA.[32]

Although IRCA would preempt the award of injunctions to police immigration laws, the statute contains a "savings" clause that permits states and localities to address immigration violations through "licensing and similar laws."[33] Courts are divided on whether to read that provision narrowly or broadly.[34] Moreover, the Commissioner or a locality certainly may notify an employer that it is in violation of immigration law. Additionally, the Commissioner may inform such employer that if the violation is not redressed, he will report the violation to Immigration and Customs Enforcement.

Conclusion

Accordingly, it is my opinion that federal law governing the employment of unauthorized aliens explicitly and implicitly preempts any Virginia law that would impose civil or criminal sanctions upon persons employing such aliens. Further, it is my opinion that imposition of an injunction constitutes a civil sanction which is preempted by federal law.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli
Attorney General

1. For purposes of this opinion, all references to federal code sections will be identified with the appropriate reference to the United States Code ("U.S.C."). Statutes listed without the U.S.C. designation refer to the Virginia Code.
2. Section 40.1-11.1 provides, in pertinent part, that "[i]t shall be unlawful and constitute a Class 1 misdemeanor for any employer or any person acting as an agent for an employer, or any person who, for a fee, refers an alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States for employment to an employer, or an officer, agent or representative of a labor organization to knowingly employ, continue to employ, or refer for employment any alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States."
3. U.S. CONST. art. VI, cl. 2.
4. See Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 240 (2d Cir. 2006).
5. See Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1255 (N.Y. 2006).
6. Id.
7. Id.
8. Id. (citations omitted). "Congress's intent to preempt state law may be implied where it has designed a pervasive scheme of regulation that leaves no room for the state to supplement, or where it legislates in '"a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state law on the same subject."'" Silva, 469 F.3d at 240 (citations omitted).
9. Balbuena, 845 N.E.2d at 1255.
10. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959) (noting state regulation must yield to federal regulation in context of National Labor Relations Act).
11. Nat'l Mar. Union v. Norfolk, 202 Va. 672, 677, 119 S.E.2d 307, 311 (1961).
12. Id.
13. Id.
14. See Balbuena, 845 N.E.2d at 1256 (noting that although IRCA and other federal statutes occupy full spectrum of immigration law, nothing indicates that Congress meant to affect state regulation of occupational health and safety; states possess broad authority under police powers).
15. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).
16. Pub. L. No. 99-603, 100 Stat. 3359.
17. See Hoffman, 535 U.S. at 147; see also Design Kitchen & Baths v. Lagos, 882 A.2d 817, 821 (Md. 2005) (noting characterization of IRCA as comprehensive scheme).
18. See Hoffman, 535 U.S. at 147; INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 194 (1991).
19. Silva, 469 F.3d at 240.
20. See Hoffman, 535 U.S. at 147.
21. Id. at 148 (citing 8 U.S.C. § 1324a(b)).
22. Baker v. IBP, Inc., 357 F.3d 685, 689 (7th Cir. 2004).
23. See Hoffman, 535 U.S. at 148 (citing 8 U.S.C. § 1324a(b)).
24. Id.
25. Id.
26. 8 U.S.C.S. § 1324a(h)(2) (LexisNexis 2007).
27. Congress expressly limits its preemption by providing an exception for "licensing and similar laws." 8 U.S.C.S. § 1324a(h)(2). State licensing and similar laws traditionally have been implemented in the exercise of a state's police powers in protection of the public health, safety, and welfare. See, e.g., VA. CODE ANN. § 54.1-100 (2009) (providing for regulation of professions and occupations for purpose of protecting public health, safety, and welfare).
28. BLACK'S LAW DICTIONARY 855 (9th ed. 2009).
29. Id. at 1458.
30. See, e.g., SEC v. M & A West Inc., 538 F.3d 1043, 1055 (9th Cir. 2008); United States v. Brennan, 395 F.3d 59, 72 (2d Cir. 2005) (describing injunctions as civil sanctions).
31. See CIBA Corp. v. Weinberger, 412 U.S. 640, 644 (1973) (describing civil injunction proceedings, criminal penalties, and in rem seizure and condemnation as types of sanctions that could be applied in enforcement of Federal Food, Drug, and Cosmetic Act); Retail Clerks Int'l Assoc. v. Schermerhorn, 375 U.S. 96, 100 (1963) (indicating that injunctions constitute one of wide variety of sanctions, also including damage suits and criminal penalties); United States v. United States Gypsum Co., 340 U.S. 76, 82 (1950) (noting that court order included "sanction of an injunction against violation of the" order); PFS Distribution Co. v. Raduechel, 574 F.3d 580, 598 (8th Cir. 2009) (describing preliminary injunction as sufficient sanction for certain conduct).
32. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 533 (M.D. Pa. 2007) (holding that IRCA preempts municipal ordinance governing illegal immigrants).
33. 8 U.S.C.S. § 1324(a)(h)(2).
34. See Lozano, 496 F. Supp. 2d at 520, 533 (invalidating city licensing scheme as incompatible with IRCA); but see Chicanos Por La Causa v. Napolitano, 558 F.3d 856 (9th Cir. 2009) (upholding Arizona licensing scheme against facial challenge), petition for cert. filed sub nom. Chamber of Commerce v. Candelaria, 130 S. Ct. 534 (U.S. Nov. 2, 2009) (No. 09-115).