Can a Virginia city or county refuse to issue a business license to a non-citizen who does not produce a green card?

Plain-English summary

Virginia Attorney General Mark Herring concluded that a commissioner of the revenue (or other local official who issues business licenses) does not have any legal duty to demand a "green card" (permanent resident card) from a non-citizen applying for a business license, and may not deny a license simply because the applicant cannot produce one.

The opinion expressly overruled a 2006 opinion by former Attorney General Robert F. McDonnell that had told commissioners of the revenue to verify residency status and refuse licenses to applicants who were not legally present. Herring's analysis: the statutes McDonnell relied on, the federal Immigration Reform and Control Act of 1986 and Va. Code § 40.1-11.1, apply only to employers and people who refer workers for a fee. They do not apply to local officials issuing business licenses. Virginia has never enacted any provision requiring a green card as a precondition for a business license.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

A "business license" in Virginia is the local license authorized under the Business, Professional, and Occupational License (BPOL) tax framework. Counties, cities, and towns issue these licenses through the office of the commissioner of the revenue (or an equivalent administrator), and the issuance triggers a local tax obligation.

The 2006 opinion that this opinion overruled (2006 Op. Va. Att'y Gen. 32) had cited two laws aimed at employers:

• The Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a, which makes it unlawful for a person or entity to knowingly hire, recruit, or refer for a fee for employment an unauthorized alien.
• Va. Code § 40.1-11.1, which makes it a Class 1 misdemeanor for any employer or agent of an employer to knowingly employ, continue to employ, or refer for employment an alien who cannot show employment eligibility.

The 2006 opinion stretched those laws "by extension" to the business-licensing context. Attorney General Herring rejected that reading: both laws apply by their own terms only to employers and referrers, not to commissioners of the revenue. The federal statute, 8 U.S.C. § 1324a(h)(2), does permit a state to prohibit licensing to employers who knowingly hire unauthorized aliens, but Virginia has not exercised that authority.

The regulations that govern business-license administration, 23 Va. Admin. Code § 10-500-610, allow the local official to verify information such as zoning approval or building permits. They do not authorize verification of an applicant's federal employment eligibility.

Common questions

Q: I'm not a U.S. citizen. Can a Virginia town legally refuse my business license because I don't have a green card?
A: No. Per this 2020 opinion, neither state nor federal law requires you to produce a permanent resident card to obtain a Virginia business license, and the local commissioner of the revenue does not have authority to demand one as a precondition. If a Virginia locality denies your application on that basis, point to this opinion.

Q: What documents can a commissioner of the revenue ask for?
A: Information related to whether the business itself is eligible to operate, such as zoning approval, building permits, and basic identifying information for tax administration. The commissioner can also confirm a federal employer identification number for businesses that have one.

Q: Does this mean undocumented immigrants can work freely in Virginia?
A: No. This opinion addresses business licensing only. Federal law (IRCA) and Va. Code § 40.1-11.1 still prohibit employers from knowingly hiring unauthorized workers. A business license does not authorize someone to be employed in the United States, and obtaining a license does not change the licensee's federal immigration status.

Q: Why did the AG overrule the 2006 opinion?
A: Because, in the new AG's view, the 2006 opinion stretched two statutes that, by their own terms, apply only to employers, into a context the General Assembly never wrote them to cover.

Q: Could the General Assembly change this in the future?
A: Yes. The federal statute leaves states free to require legal status as a condition of a license to an employer who knowingly hires unauthorized aliens. Virginia has not done so, but a future legislature could. As of the opinion date, no such requirement existed in Virginia law.

Citations and references

Statutes:

• Va. Code § 2.2-505 (Official advisory opinions)
• Va. Code § 40.1-11.1 (Employer prohibition on knowingly employing unauthorized aliens)
• Va. Code § 54.1-4001 (Pawnbroker license, cited as a contrast example)
• 8 U.S.C. § 1324a (Immigration Reform and Control Act employer provisions)
• 23 Va. Admin. Code § 10-500-610 (BPOL administration)

Prior AG opinions:

• 2006 Op. Va. Att'y Gen. 32 (overruled by this opinion)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/19-062-Kellam-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

August 7, 2020

The Honorable Philip J. Kellam
Virginia Beach Commissioner of the Revenue
2401 Courthouse Drive
Virginia Beach, Virginia 23456

Dear Commissioner Kellam:

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 ask whether a commissioner of the revenue may issue a business license if an applicant presents a passport issued by any nation and a United States federal employer identification number or whether a non-citizen applicant must also provide a "green card" signifying permanent residency as a pre-condition to the issuance of a business license.

Background

Your question arises out of an opinion issued by former Attorney General Robert F. McDonnell in 2006 opining that a commissioner of the revenue is required to verify an applicant's residency status and that a commissioner may not issue a business license to an applicant who is not legally present in the United States.[1]

Applicable Law and Discussion

Attorney General McDonnell based his 2006 opinion on the federal Immigration Reform and Control Act of 1986 ("Immigration Act"), which makes it unlawful for a person or entity to knowingly hire, recruit, or refer for a fee for employment in the United States an unauthorized alien.[2] The opinion also cited § 40.1-11.1 of the Code of Virginia, which makes it a Class 1 misdemeanor for any employer or agent of an employer 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] The opinion concluded that "the statutes that deny lawful employment to illegal aliens, by extension, also would apply equally to the issuance of a business license."[4]

In my view, the 2006 opinion is incorrect. The language in the Immigration Act and § 40.1-11.1 does not justify an "extension" of the federal immigration policy underlying the law to the issuance of business licenses. As relevant here, both the Immigration Act and the Virginia statute apply to employers, their agents, and persons who (for a fee) refer for employment an individual who cannot provide documents to show employment eligibility. Neither law applies to commissioners of the revenue or other local officials who issue business licenses, and no state law governing the issuance of business licenses imposes a duty on commissioners of the revenue or other local officials to verify an applicant's employment eligibility.[5] Although the Immigration Act may permit states to prohibit the issuance of licenses to employers who knowingly hire unauthorized aliens,[6] the Commonwealth of Virginia has not done so.[7]

Thus, in my view, the 2006 Attorney General opinion you reference was based on a statute that, by its own terms, does not apply to commissioners of the revenue or other local officials responsible for issuing business licenses. Nor has Virginia enacted any provision under which a non-citizen applicant must provide a permanent resident card (green card) to obtain a business license.

Conclusion

Virginia law does not require a commissioner of the revenue or similar local official to deny a business license to a non-citizen applicant who fails to produce a permanent resident card. The 2006 opinion that reached a different conclusion is incorrect and overruled.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. See 2006 Op. Va. Att'y Gen. 32.

2. 8 U.S.C. § 1324a(a)(1)(A). As defined in the Immigration Act, an "unauthorized alien" means an alien who is not at the time of employment either an alien lawfully admitted for permanent residence, or an alien otherwise authorized to be employed under law or by the Attorney General. 8 U.S.C. § 1324a(h)(3).

3. VA. CODE ANN. § 40.1-11.1.

4. 2006 Op. Va. Att'y Gen. 32, 33-34.

5. By contrast, Va. Code § 54.1-4001 prohibits a locality from issuing a license to a pawnbroker unless authorized by a circuit court.

6. See 8 U.S.C. § 1324a(h)(2).

7. Virginia regulations currently provide that the local official administering the business license tax may consult with federal, state, or local officials to "verify" certain information or "coordinate enforcement of various tax and regulatory provisions." 23 VA. ADMIN. CODE § 10-500-610. The regulatory provisions permit the official to verify information relating to whether the individual is eligible to conduct the business described in the application, such as verifying zoning approval or building permits, not whether the applicant or his or her employees are eligible for employment in the United States. See id.