Amicus Curiae Brief — Kansas, Petitioner v. Ramiro Garcia

Supreme Court briefMay 31, 2019

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No. 17-834

In the Supreme Court of the United States

STATE OF KANSAS, PETITIONER

v.

RAMIRO GARCIA, ET AL.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF KANSAS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOSEPH H. HUNT

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

HASHIM M. MOOPPAN

Deputy Assistant Attorney

General

CHRISTOPHER G. MICHEL

Assistant to the Solicitor

General

MARK B. STERN

LINDSEY POWELL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether 8 U.S.C. 1324a(b)(5), which prohibits the

“use[]” of a designated federal work-authorization form

(the I-9) and “any information contained in or appended

to such form * * * for purposes other than” specified

federal law-enforcement actions, expressly preempts

Kansas’s prosecution of respondents for providing false

identity information on documents other than the I-9.

2. Whether the Immigration Reform and Control

Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, impliedly

preempts Kansas’s prosecution of respondents.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statutory provisions involved ...................................................... 1

Statement:

A. Legal background ............................................................ 2

B. Proceedings below ........................................................... 6

Summary of argument ............................................................... 11

Argument:

IRCA does not expressly or impliedly preempt

Kansas’s prosecution of respondents................................... 13

A. IRCA does not expressly preempt the

prosecutions ................................................................... 13

1. The text of Section 1324a(b)(5) does not bar

the prosecutions ...................................................... 14

2. The structure and purpose of IRCA confirm

that Section 1324a(b)(5) does not bar the

prosecutions ............................................................. 17

B. IRCA does not impliedly preempt the prosecutions ... 21

1. IRCA does not impliedly preempt the

prosecutions through field preemption................. 22

2. IRCA does not impliedly preempt the

prosecutions through conflict preemption ............ 28

Conclusion ................................................................................... 32

Appendix — Statutory provisions ........................................... 1a

TABLE OF AUTHORITIES

Cases:

Arizona v. United States, 567 U.S. 387 (2012) .......... passim

California v. Zook, 336 U.S. 725 (1949)................................. 6

Cedric Kushner Promotions, Ltd. v. King,

533 U.S. 158 (2001).............................................................. 20

Chamber of Commerce of U.S. v. Whiting,

563 U.S. 582 (2011)..................................................... passim

Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992) ..... 13, 23

(III)

IV

Cases—Continued:

Page

De Canas v. Bica, 424 U.S. 351 (1976)................. 2, 22, 27, 28

English v. General Elec. Co., 496 U.S. 72 (1990) .......... 25, 27

FERC v. Electric Power Supply Ass’n,

136 S. Ct. 760 (2016) ........................................................... 16

Gade v. National Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992) ............................................................... 18

Hoffman Plastic Compounds, Inc. v. NLRB,

535 U.S. 137 (2002).......................................................... 2, 18

Hughes v. Talen Energy Mktg., LLC,

136 S. Ct. 1288 (2016) ................................................... 13, 26

Lockhart v. United States, 136 S. Ct. 958 (2016) ............. 18

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991)................................................................ 2

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ................ 20, 21

Merit Mgmt. Grp., LP v. FTI Consulting, Inc.,

138 S. Ct. 883 (2018) ........................................................... 17

Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015) .... 22, 27, 28

Puente Ariz. v. Arpaio, 821 F.3d 1098

(9th Cir. 2016) ...................................................................... 17

RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639 (2012) .................................................. 16

Rowan Cos. v. United States, 452 U.S. 247 (1981) ............. 19

State v. Martinez, 896 N.W.2d 737 (Iowa 2017) ..... 10, 16, 17

State v. Meza, 165 P.3d 298 (Kan. Ct. App. 2007) ................ 6

State v. Reynua, 807 N.W.2d 473

(Minn. Ct. App. 2011) ......................................................... 17

United States v. Berroa, 856 F.3d 141 (1st Cir.),

cert. denied, 138 S. Ct. 488 (2017) ....................................... 5

United States v. South Carolina, 720 F.3d 518

(4th Cir. 2013) ...................................................................... 24

Voisine v. United States, 136 S. Ct. 2272 (2016) ................ 14

V

Constitution, statutes, regulations, and rule:

Page

U.S. Const. Art. I, § 8, Cl. 4 .................................................... 2

Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq. ............ 27

Immigration and Nationality Act,

8 U.S.C. 1101 et seq. .............................................................. 2

8 U.S.C. 1255(c)(2) ............................................................. 4

8 U.S.C. 1255(c)(8) ............................................................. 4

8 U.S.C. 1227(a)(1)(C)(i) ................................................... 4

8 U.S.C. 1325 .................................................................... 21

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, 100 Stat. 3359 ...................................... 1

8 U.S.C. 1324a(a) ................................................. 22, 23, 1a

8 U.S.C. 1324a(a)(1)(A) ............................................... 3, 1a

8 U.S.C. 1324a(b) ......................................................... 3, 5a

8 U.S.C. 1324a(b)(1)(A) ............................................... 3, 5a

8 U.S.C. 1324a(b)(1)(A)-(D) ........................................ 3, 5a

8 U.S.C. 1324a(b)(2) .................................................... 4, 8a

8 U.S.C. 1324a(b)(3) .............................................. 4, 17, 8a

8 U.S.C. 1324a(b)(4) .............................................. 4, 17, 9a

8 U.S.C. 1324a(b)(5) ..........................................passim, 9a

8 U.S.C. 1324a(d)(2) ........................................................ 17

8 U.S.C. 1324a(d)(2)(F)-(G) ............................................ 18

8 U.S.C. 1324a(e)(4) ........................................................... 4

8 U.S.C. 1324a(e)-(f ) .................................................. 22, 23

8 U.S.C. 1324a(f )................................................................ 4

8 U.S.C. 1324a(h)(2) ............................................ 5, 23, 10a

8 U.S.C. 1324a(h)(3) .................................................. 3, 11a

8 U.S.C. 1324c(a) ............................................................... 4

8 U.S.C. 1324c(a)(1) ......................................................... 25

8 U.S.C. 1324c(d)(3) ......................................................... 25

Natural Gas Act, 15 U.S.C. 717 et seq. ................................ 27

18 U.S.C. 1001 .......................................................................... 4

VI

Statutes, regulations, and rule—Continued:

Page

18 U.S.C. 1028 ................................................................ 4, 5, 29

18 U.S.C. 1028A ........................................................... 5, 20, 29

18 U.S.C. 1546 .............................................................. 4, 25, 29

18 U.S.C. 1621 .......................................................................... 4

42 U.S.C. 408(a) ..................................................................... 20

Kan. Stat. Ann. (Supp. 2017):

§ 21-3711 (Supp. 2010) ...................................................... 6

§ 21-4018 (Supp. 2010) ...................................................... 6

§ 21-5824 ..................................................................... 6, 11a

§ 21-6107(a)(1) ............................................................ 6, 11a

§ 21-6107(e)(2) ............................................................ 6, 13a

8 C.F.R.:

Section 274a.2(a)(2) ........................................................... 3

Section 274a.10 .................................................................. 4

Section 274a.12 .................................................................. 3

Sup. Ct. R. 34(f ) ..................................................................... 15

Miscellaneous:

Bureau of Justice Statistics, U.S. Dep’t of Justice,

Victims of Identity Theft, 2016 (Jan. 2019),

https://www.bjs.gov/content/pub/pdf/vit16_sum.pdf ........ 5

3 Wayne R. LaFave, Substantive Criminal Law

(3d ed. 2018)........................................................................... 5

National Conference of State Legislatures, Identity

Theft, http://www.ncsl.org/research/ financialservices-and-commerce/identity-theft-statestatutes.aspx (last visited May 31, 2019) ............................ 5

U.S. Citizenship & Immigration Services, Dep’t of

Homeland Security, Handbook for Employers

M-274, https://www.uscis.gov/i-9 central/

handbook-employers-m-274 (last visited

May 31, 2019)......................................................................... 3

In the Supreme Court of the United States

No. 17-834

STATE OF KANSAS, PETITIONER

v.

RAMIRO GARCIA, ET AL.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF KANSAS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns whether the Immigration Reform

and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100

Stat. 3359, preempts state-law prosecutions for identity

theft and related offenses under generally applicable

criminal laws. The United States enforces IRCA and

prosecutes federal crimes that could be affected by the

Court’s interpretation of IRCA in this case. The United

States accordingly has a substantial interest in the resolution of the question presented. At the Court’s invitation, the United States filed an amicus brief at the petition stage of this case.

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix to this brief. App., infra, 1a-14a. The Form

I-9 is also reproduced in the appendix. Id. at 15a-17a.

(1)

2

STATEMENT

A. Legal Background

1. The Constitution vests the federal government

with “broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United

States, 567 U.S. 387, 394 (2012); see U.S. Const. Art. I,

§ 8, Cl. 4. Pursuant to that power, Congress in 1952 enacted the Immigration and Nationality Act (INA),

8 U.S.C. 1101 et seq., which “set the terms and conditions of admission to the country and the subsequent

treatment of aliens lawfully in the country.” Chamber

of Commerce of U.S. v. Whiting, 563 U.S. 582, 587 (2011)

(citation and internal quotation marks omitted).

As initially enacted, the INA did not regulate “the

employment of unauthorized aliens.” Arizona, 567 U.S.

at 404. Instead, regulation of alien employment largely

came from the States. See Whiting, 563 U.S. at 588 &

n.1. California, for example, banned employment of any

alien “who is not entitled to lawful residence in the

United States if such employment would have an adverse effect on lawful resident workers.” De Canas v.

Bica, 424 U.S. 351, 352 (1976) (citation omitted). The

Court unanimously upheld that law against constitutional and statutory preemption challenges. Id. at 365.

In 1986, Congress passed and President Reagan

signed IRCA, “a major statutory response to the vast

tide of illegal immigration that had produced a ‘shadow

population’ of literally millions of undocumented aliens

in the United States.” McNary v. Haitian Refugee Ctr.,

Inc., 498 U.S. 479, 481 (1991). As relevant here, IRCA

“made combating the employment of illegal aliens central to ‘the policy of immigration law.’ ” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)

(brackets and citation omitted). Specifically, IRCA

3

makes it “unlawful for a person or other entity” to “hire,

or to recruit or refer for a fee, for employment in the

United States an alien knowing the alien is * * * unauthorized” to work in the United States. 8 U.S.C.

1324a(a)(1)(A). An “unauthorized alien” is one neither

“lawfully admitted for permanent residence” nor otherwise “authorized to be” employed by the Attorney General. 8 U.S.C. 1324a(h)(3); see 8 C.F.R. 274a.12 (authorizing employment for various classes of aliens).

To enforce its prohibition on employment of unauthorized aliens, IRCA establishes a detailed verification

system. 8 U.S.C. 1324a(b). First, employers “must attest,

under penalty of perjury and on a form designated or

established by the Attorney General by regulation”—

the Form I-9—that they have “verified” that an employee “is not an unauthorized alien.”

8 U.S.C.

1324a(b)(1)(A); see 8 C.F.R. 274a.2(a)(2) (establishing

the Form I-9); App., infra, 15a-17a (reproducing the

Form I-9). Specifically, employers must attest they

have examined particular documents establishing the

employee’s work authorization and identity. 8 U.S.C.

1324a(b)(1)(A)-(D). That requirement applies to any

“individual” employee regardless of citizenship or nationality. 8 U.S.C. 1324a(b)(1)(A); see United States

Citizenship & Immigration Services, Dep’t of Homeland

Security, Handbook for Employers M-274, at 4, https://

www.uscis.gov/i-9-central/handbook-employers-m-274

(“Every employer must complete a Form I-9 for every

new employee you hire after [IRCA’s effective date].

This includes U.S. citizens and noncitizen nationals who

are automatically eligible for employment in the United

States.”). Failure to follow “IRCA’s strictures” subjects an employer to “both civil and criminal sanctions.”

4

Whiting, 563 U.S. at 589; see 8 U.S.C. 1324a(e)(4) and

(f ); 8 C.F.R. 274a.10.

IRCA also requires an employee to “attest, under

penalty of perjury on the [I-9] form,” that he is “a citizen

or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is [otherwise] authorized” to work in the United States. 8 U.S.C.

1324a(b)(2). Although IRCA does not criminalize work

without authorization, an employee who makes or uses

a fraudulent document to satisfy IRCA’s employmentauthorization requirement is subject to civil and criminal penalties. See 8 U.S.C. 1324c(a); 18 U.S.C. 1546. In

addition, alien employees who work without authorization generally “are not eligible to have their status adjusted to that of a lawful permanent resident” and “may

be removed from the country.” Arizona, 567 U.S. at

405; see 8 U.S.C. 1255(c)(2) and (c)(8), 1227(a)(1)(C)(i).

Several provisions of IRCA provide further direction

about the I-9. Section 1324a(b)(3) requires employers

to retain the form and make it available to specified federal officials. Section 1324a(b)(4) permits employers

to copy the form for particular purposes. Section

1324a(b)(5), entitled “Limitation on use of attestation

form,” is centrally relevant to this case. That provision

states that the I-9 form and “any information contained

in or appended to such form[] may not be used for purposes other than for enforcement of ” the INA and specified criminal statutes. 8 U.S.C. 1324a(b)(5). The specified statutes are 18 U.S.C. 1001 (false statements),

18 U.S.C. 1028 (identity theft), 18 U.S.C. 1546 (immigration document fraud), and 18 U.S.C. 1621 (perjury).

IRCA also contains an “express pre-emption provision.” Arizona, 567 U.S. at 406. That provision, titled

“Preemption,” states that IRCA “preempt[s] any State

5

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.” 8 U.S.C. 1324a(h)(2).

2. “[P]rotection against fraud” is among “the oldest

[powers] within the ambit of the police power” of the

States. California v. Zook, 336 U.S. 725, 734 (1949). Of

particular relevance here, state statutes dating back to

the Founding (and English statutes before that) have

criminalized forgery and obtaining property by false

pretenses. 3 Wayne R. LaFave, Substantive Criminal

Law § 19.7( j) (3d ed. 2018). In the modern era, those

crimes increasingly involve identity theft—a serious

and “growing problem” throughout the United States.

United States v. Berroa, 856 F.3d 141, 156 (1st Cir.) (citation omitted), cert. denied, 138 S. Ct. 488 (2017). According to the most recent estimates, one in ten Americans over age 16—a total of more than 17 million

people—has been a victim of identity theft in the past

year. See Bureau of Justice Statistics, U.S. Dep’t of

Justice, Victims of Identity Theft, 2016, at 1 (Jan. 2019),

https://www.bjs.gov/content/pub/pdf/vit16_sum.pdf. In

2016 alone, “total losses across all incidents of identity

theft totaled $17.5 billion.” Ibid. In response to this

serious problem, Congress and every State in the Nation has specifically criminalized identity theft.

18 U.S.C. 1028, 1028A; see National Conference of

State Legislatures, Identity Theft, http://www.ncsl.org/

research/financial-services-and-commerce/identitytheft-state-statutes.aspx.

This case involves Kansas’s identity-theft and falseinformation statutes. The identity-theft statute criminalizes “using” any “personal identifying information”

belonging to another person, with intent to “[d]efraud

6

that person, or anyone else, in order to receive any benefit.” Kan. Stat. Ann. § 21-6107(a)(1) (Supp. 2017). “[P]ersonal identifying information” includes, inter alia, a

name, birthdate, driver’s license number, or social security number. Id. § 21-6107(e)(2). Kansas courts have

interpreted the statute to cover use of another person’s

social security number to receive the benefits of employment. State v. Meza, 165 P.3d 298, 301-302 (Kan.

Ct. App. 2007); see Pet. App. 51-53, 76. 1

Kansas’s false-information statute criminalizes “making, generating, distributing or drawing” a “written instrument” or other specified information with “knowledge that such information falsely states or represents

some material matter,” and “with intent to defraud, obstruct the detection of a theft or felony offense or induce

official action.” Kan. Stat. Ann. § 21-5824 (Supp. 2017).

As their text indicates, the identity-theft and false-writing statutes are generally applicable. They criminalize

conduct by citizens and aliens alike, and nothing limits

their application to the employment context. See Pet.

App. 55. 2

B. Proceedings Below

This case arises from three prosecutions under Kansas’s identity-theft and false-information statutes, each

involving respondents’ use of another person’s social security number on tax-withholding forms.

1

Respondents challenged that interpretation of state law in the

Kansas courts, but the Kansas Supreme Court did not address the

issue, see Pet. App. 2, and it is not before this Court.

2

The identity-theft statute was previously codified at Kan. Stat.

Ann. § 21-4018 (Supp. 2010). The false-information statute was previously codified at Kan. Stat. Ann. § 21-3711 (Supp. 2010). The statutes have not materially changed. See Pet. Br. 2-3 nn.1-2.

7

1. Respondent Ramiro Garcia was stopped for speeding by Kansas police. Pet. App. 3. A records check

prompted the officer to contact a financial-crimes detective, who obtained documents Garcia had submitted

with his employment application at a restaurant. Ibid.

Further investigation revealed that Garcia had used a

Texas woman’s social security number on his state and

federal tax-withholding forms and his I-9. Ibid. The

State charged him with identity theft. Ibid.

Respondent Donaldo Morales came to officers’ attention as a result of irregularities in social security reporting at another restaurant. Pet. App. 62-63. A Social

Security Administration agent discovered that Morales

had submitted state and federal tax-withholding forms

and an I-9 with a social security number that did not

belong to him. Id. at 63. Morales later admitted that he

had “purchased the Social Security number * * * from

someone in a park.” Id. at 63-64. The State charged

him with identity theft and making a false information.

Ibid.

Respondent Guadalupe Ochoa-Lara used another

person’s social security number to lease an apartment.

Pet. App. 91. Police discovered the discrepancy when

they tried to contact someone else at the apartment.

Ibid. Ochoa-Lara admitted that the social security

number he had used for the lease did not belong to him,

and that he had used the same incorrect social security

number on his federal tax-withholding form and I-9. Id.

at 90-92. The true owner of the social security number

“had no knowledge her number was being used and did

not consent to it being used,” including for reporting to

the IRS income that she had not earned. Id. at 91. The

State charged Ochoa-Lara with identity theft and making a false information. Id. at 90.

8

2. Respondents all contended that their prosecutions were barred by 8 U.S.C. 1324a(b)(5). As noted

above, Section 1324a(b)(5) states that the I-9 and “any

information contained in or appended to” the I-9 “may

not be used for purposes other than” specified federal

law-enforcement actions. Ibid. In each case, the State

agreed not to rely on the I-9 and dismissed charges that

pertained only to the I-9, but contended that Section

1324a(b)(5) did not bar its use of other documents on

which respondents had used false social security numbers, including their tax-withholding forms. Pet. App.

4, 63, 86, 90-91, 101-102, 115. The trial courts agreed to

dismiss the counts that relied on respondents’ I-9s, but

allowed the State to proceed with charges based on the

other documents. See id. at 4, 63, 86-87, 90-91, 106, 116117. Respondents were convicted of the charged offenses. Id. at 7, 66, 92.

3. Respondents each appealed to the Kansas Court

of Appeals. Three separate panels affirmed their convictions. Pet. App. 48-60, 71-82, 97-112.

a. The Kansas Court of Appeals decided OchoaLara’s case first. The court concluded that Section

1324a(b)(5) did not expressly preempt his prosecution

because “neither the I-9 form nor the documents appended to the I-9 form were used to prosecute” him, and

“nothing in” Section 1324a(b)(5) “prohibits the State

from proving identity theft by using information from

sources other than the I-9 form, even though that information may also be contained on the I-9 form.” Pet.

App. 106. The fact that “Ochoa-Lara used the Social

Security number of another person in connection with

the completion of the I-9 form,” the court concluded,

“does not mean that he gets the proverbial ‘Get Out of

9

Jail Free’ card for other illegal uses of that Social Security number that violate Kansas statutes.” Id. at 107.

The Kansas Court of Appeals rejected Ochoa-Lara’s

argument that IRCA impliedly preempted his prosecution. The court explained that IRCA “preempt[s] the

area of employment-related verification of immigration

status,” but Kansas’s identity-theft statute does not

have “anything to do with the employment-related verification of immigration status.” Pet. App. 105. Rather,

the “gravamen of the offenses for which Ochoa-Lara

was prosecuted [was] the unauthorized use[] of another

person’s Social Security number.” Id. at 106.

b. Other panels of the Kansas Court of Appeals affirmed Garcia’s and Morales’s convictions on similar

grounds. Pet. App. 55-57, 80-82.

4. The Kansas Supreme Court reversed each of respondents’ convictions by a divided vote. Pet. App. 1-28,

61-69, 88-94.

a. The Kansas Supreme Court decided Garcia’s case

first. Four Justices concluded that Section 1324a(b)(5)

expressly preempted his prosecution because the State

proved the offense using the fraudulent social security

number on his tax-withholding forms, which he had also

provided on his I-9. Pet. App. 27-28. The majority

acknowledged that the State “did not rely on the I-9” in

the prosecution, but emphasized that Section 1324a(b)(5)

“prohibit[s] state law enforcement use not only of the

I-9 itself but also” of “any information contained in the

I-9.” Ibid. In the majority’s view, the fact that the incorrect social security number “was included in the

W-4 and K-4 did not alter the fact that it was also” contained in the I-9. Id. at 28.

10

Justice Luckert filed a concurring opinion. Pet. App.

29-38. She rejected “the majority’s conclusion that express preemption applies.” Id. at 29. In her view, “field

and conflict preemption” barred Garcia’s prosecution.

Ibid. She concluded that Congress, in enacting the

“comprehensive IRCA system,” had “occupied the field

and prohibited the use of false documents, including

those using the identity of others, when an unauthorized

alien seeks employment.” Id. at 35-36. She also concluded the prosecution was preempted because it would

“frustrate[] congressional purpose and provide[] an obstacle to the implementation of federal immigration policy by usurping federal enforcement discretion in the

field of unauthorized employment of aliens.” Id. at 36

(quoting State v. Martinez, 896 N.W.2d 737, 756 (Iowa

2017)).

Justice Biles dissented. Pet. App. 38-45. He rejected

the majority’s conclusion that Section 1324a(b)(5) “applies literally to all information on the Form I-9, wherever else it might be found.” Id. at 40. He instead read

Section 1324a(b)(5) to apply “to the contents of the completed Form I-9.” Ibid. Because the I-9 “was not admitted into evidence” in Garcia’s case, he concluded, no

information “gleaned from it was ‘used’ ” to prove the

offense. Ibid. In his view, the majority’s “sweeping”

reading of Section 1324a(b)(5) rested on “a unique and

overly literal interpretation” that “stretches statutory

interpretation past the breaking point” and “cannot reflect congressional intent.” Id. at 39-40.

Justice Stegall also dissented. Pet. App. 45-47. He

explained that the majority’s decision “appears to

wipe numerous criminal laws off the books in Kansas—

starting with, but not necessarily ending with,” identity-

11

theft laws. Id. at 45. He doubted that “Congress intended to expressly preempt state use of all information

contained in a person’s I-9 form * * * for any purpose.”

Id. at 46. Such a reading, he observed, would prevent

state prosecutors from using “the name of any citizen

who has completed an I-9”—an untenable result. Ibid.

b. The Kansas Supreme Court reversed Morales’s

and Ochoa-Lara’s convictions on similar grounds. Pet.

App. 67, 93.

SUMMARY OF ARGUMENT

IRCA does not expressly or impliedly preempt Kansas’s prosecution of respondents for violating generally

applicable identity-theft and false-information laws.

A. The prosecutions are not expressly preempted.

Under 8 U.S.C. 1324a(b)(5), a State may not “use[]” the

Form I-9 or “any information contained in or appended

to such form” for a criminal prosecution. That limitation poses no bar to the prosecutions here because Kansas prosecuted respondents using only the tax-withholding forms on which they entered false social security numbers. Although the State initially brought

charges based on respondents’ entry of false social security numbers on their I-9s, the State voluntarily dismissed those counts. That underscores that the State

did not “use[]” respondents’ I-9s or “any information

contained in * * * such form[s]” to convict them. Ibid.

A State cannot violate Section 1324a(b)(5)’s limitation

on use of information in the I-9 by relying exclusively

on information in documents other than the I-9.

The Kansas Supreme Court’s holding that the State

used information “contained in” the I-9s is contrary to

the statute’s plain meaning. An ordinary speaker would

not say that she used information contained in one doc-

12

ument if she actually took the information from a different document, even if the documents happen to contain

the same information. The Kansas Supreme Court’s

holding also produces implausible results. Under the

court’s reasoning, the State may not use any information “contained in” an I-9, including such basic information as a name or address, even if the State takes the

information entirely from different documents wholly

unrelated to the employment context. Because virtually

everyone who has a job—citizens and aliens alike—

must submit an I-9, the decision below would preclude

the use of basic identity information in most state and

many federal law-enforcement operations. Unsurprisingly, every other court to consider the question has

found that result irreconcilable with the statutory text,

structure, and purpose.

B. The prosecutions are also not impliedly preempted. Respondents contend (Br. in Opp. 21-22) that the

prosecutions are field preempted because Congress has

occupied fields related to the employment of unauthorized aliens. But Congress has not occupied those fields.

And even if it had, respondents’ prosecutions would not

be field preempted, because respondents were not prosecuted for seeking unauthorized employment, but rather for committing identity theft and document fraud

—generally applicable offenses that are not limited to

the employment context or to unauthorized aliens. Respondents’ contrary position would mean that Kansas

could prosecute a U.S. citizen or authorized alien who

presents an employer with a false social security number, but could not prosecute an unauthorized alien who

does the same. Nothing in IRCA or elsewhere suggests

13

that Congress intended to carve out an exception to generally applicable state laws for the exclusive benefit of

unauthorized aliens.

Respondents’ conflict-preemption argument is similarly flawed. Respondents contend that their prosecutions pose an obstacle to federal purposes “by usurping

federal enforcement discretion in the field of unauthorized employment of aliens.” Br. in Opp. 23 (citations

omitted). But respondents were not prosecuted for

seeking unauthorized employment, so their prosecutions cannot have usurped federal enforcement discretion in that field. Indeed, federal law-enforcement officials participated in the prosecutions, which strongly

suggests their discretion was not usurped. And prosecuting identity theft is fully consistent with federal purposes as expressed in IRCA and elsewhere. The decision below therefore should be reversed.

ARGUMENT

IRCA DOES NOT EXPRESSLY OR IMPLIEDLY PREEMPT

KANSAS’S PROSECUTION OF RESPONDENTS

A. IRCA Does Not Expressly Preempt The Prosecutions

The “purpose of Congress is the ultimate touchstone

in every pre-emption case.” Hughes v. Talen Energy

Mktg., LLC, 136 S. Ct. 1288, 1297 (2016) (citation omitted). When analyzing an express-preemption provision,

courts “focus on the plain wording of the” statute,

“which necessarily contains the best evidence of Congress’ preemptive intent.” Chamber of Commerce of

U.S. v. Whiting, 563 U.S. 582, 594 (2011) (citation omitted) (analyzing IRCA); see Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 545 (1992) (Scalia, J., concurring in

the judgment in part and dissenting in part) (looking to

14

“Congress’s intent, as revealed by the text, structure,

purposes, and subject matter of the statutes involved”).

1. The text of Section 1324a(b)(5) does not bar the

prosecutions

The Kansas Supreme Court concluded that respondents’ prosecutions were expressly preempted by

8 U.S.C. 1324a(b)(5). Titled “Limitation on use of attestation form,” Section 1324a(b)(5) states that the I-9

“form * * * and any information contained in or appended to such form [] may not be used for purposes

other than” specified federal law-enforcement actions.

Ibid. That limitation does not bar the prosecutions

here. In prosecuting respondents, “the State did

not rely on the I-9.” Pet. App. 28. The State instead

prosecuted respondents “us[ing]” exclusively their taxwithholding forms and the false social security numbers

“contained in * * * such form[s].” 8 U.S.C. 1324a(b)(5).

Under its “plain wording,” Section 1324a(b)(5) did not

preempt the prosecutions. Whiting, 563 U.S. at 594 (citation omitted).

The procedural history of the case illustrates what

Section 1324a(b)(5) does and does not prevent. Kansas

initially brought charges against respondents based on

their entry of false social security numbers on both their

I-9s and their tax-withholding forms. See p. 8, supra.

Had the State proceeded with the charges based on the

I-9s, it would have “used” respondents’ I-9 forms and

information “contained in * * * such form[s]” in violation of Section 1324a(b)(5). 8 U.S.C. 1324a(b)(5); see

Voisine v. United States, 136 S. Ct. 2272, 2278 n.3 (2016)

(explaining that the ordinary meaning of the verb

“use[]” is “to employ”) (citation omitted). But the State

dismissed the counts involving respondents’ entry of

false social security numbers on the I-9s and declined to

15

introduce the I-9s into evidence for any purpose. See

p. 8, supra. Kansas accordingly did not “use[]” the I-9s

or the false social security numbers “contained in * * *

such form[s].” 8 U.S.C. 1324a(b)(5). To the contrary,

Kansas deliberately decided not to “use[]” the I-9s or

the false social security numbers “contained in * * *

such form[s].” Ibid. A State does not violate the prohibition on “us[ing]” the I-9 or “information contained

in * * * such form” when its prosecution is premised

entirely on separate documents other than the I-9. Ibid.

(emphasis added).

To be sure, as the Kansas Supreme Court observed,

respondents entered the same false social security numbers on both their tax-withholding forms and their I-9s.

Pet. App. 28. But the presence of the same numbers on

both documents does not mean that Kansas “used” the

I-9s or “information contained in * * * such form[s]” to

prosecute respondents. 8 U.S.C. 1324a(b)(5). An ordinary speaker would not typically say that she “used” information contained in one document if she took the information from a different document. This Court, for

example, requires counsel of record to submit an e-mail

address and telephone number on the cover of a brief.

Sup. Ct. R. 34(f ). Counsel will almost certainly submit

that same contact information to other recipients for

other purposes—for instance, to a bank to open a checking account. If the Clerk’s Office were to contact counsel based on the e-mail address or phone number on the

cover of the brief, an ordinary speaker would not say

that the Office had “used” information “contained in”

counsel’s bank records, even though the same e-mail address and phone number appear there. The natural

reading of Section 1324a(b)(5)’s text is thus that it bars

16

a State’s use only of “the I-9 form or its supporting documents themselves.” Whiting, 563 U.S. at 603 n.9 (plurality opinion) (emphasis added). Respondents’ contrary interpretation is the kind of “hyperliteral” construction that this Court has rejected in favor of the ordinary meaning of the statutory language. RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.

639, 645 (2012); see, e.g., FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760, 774 (2016).

Respondents suggest that their hyperliteral interpretation is necessary to avoid rendering “nugatory the

statutory clause ‘and any information contained in’ the

I-9 Form.” Br. in Opp. 18 (quoting 8 U.S.C. 1324a(b)(5)).

That contention is mistaken. Section 1324a(b)(5) bars

use of the I-9 and “information contained in or appended to such form” to make clear that a State may not

extract information from the I-9—for example, an employee’s use of a false name or social security number in

Section One of the form, see App., infra, 15a—and then

claim that Section 1324a(b)(5) does not apply because

the State is not using the I-9 “form” in its entirety,

8 U.S.C. 1324a(b)(5). See Pet. App. 40 (Biles, J., dissenting) (explaining that the “information contained in”

provision of Section 1324a(b)(5) ensures that the prohibition covers all “the contents of the completed” I-9). If

Congress had wanted all information that appears on

the I-9 “to be totally off-limits” to state law enforcement, even when the information is taken from documents other than the I-9, Congress “would have worded

the statute much differently.” State v. Martinez,

896 N.W.2d 737, 768 (Iowa 2017) (Mansfield, J., dissenting).

For these reasons, every state or federal judge who

has considered the question—with the exception of the

17

four-Justice majority below—has concluded that “IRCA’s

document use limitation is only violated when the identity theft laws are applied in ways that rely on the Form

I-9 and attached documents.” Puente Ariz. v. Arpaio,

821 F.3d 1098, 1108 (9th Cir. 2016) (emphasis added);

see Martinez, 896 N.W.2d at 768 (Mansfield, J., dissenting); State v. Reynua, 807 N.W.2d 473, 480-481 (Minn.

Ct. App. 2011); Pet. App. 40-44 (Biles, J., dissenting);

Pet. App. 46 (Stegall, J., dissenting); Pet. App. 80-82

(citing numerous Kansas Court of Appeals decisions

reaching the same result). The government has consistently interpreted Section 1324a(b)(5) in the same way,

explaining that Section 1324a(b)(5) does not expressly

“preclude a State from relying on” information that appears in an I-9 so long as it is “taken from another

source.” Gov’t C.A. Amicus Br. at 14, Puente Ariz., supra (No. 15-15211).

2. The structure and purpose of IRCA confirm that

Section 1324a(b)(5) does not bar the prosecutions

a. IRCA’s structure and purpose confirm Congress’s focus on limiting use of the “form I-9 itself ”—

not distinct documents that happen to contain information that also appears on the I-9. Whiting, 563 U.S.

at 589. Section 1324a(b)(5) is titled, “Limitation on use

of attestation form,” which reinforces Congress’s focus

on the I-9 form. Cf. Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (relying on similar title in interpreting statute). Section 1324a(b)(5)

appears immediately after other provisions that govern

use of the I-9 form itself. See 8 U.S.C. 1324a(b)(3) (retention of form); 8 U.S.C. 1324a(b)(4) (copying of form).

And Section 1324a(d)(2), which governs administrative

changes to IRCA’s “verification system,” specifies that

that “[t]he system may not be used for law enforcement

18

purposes” other than those enumerated in Section

1324a(b)(5), and that if the system “requires individuals

to present a new card or document” for employment

verification, “such document may not be required to be

presented for any purpose other than” those enumerated in Section 1324a(b)(5). 8 U.S.C. 1324a(d)(2)(F)-(G)

(emphases added). The “structure and internal logic of ”

IRCA indicate that Section 1324a(b)(5) similarly governs use of the I-9 form and information taken from that

form, not separate documents that have nothing to do

with employment verification but happen to contain the

same information that appears on the I-9. Lockhart v.

United States, 136 S. Ct. 958, 962 (2016); see Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 99 (1992)

(plurality opinion) (rejecting preemption argument that

“might be plausible were [the Court] to interpret that

provision in isolation, but * * * simply is not tenable in

light of the [statute’s] surrounding provisions”).

The same understanding follows from IRCA’s purpose: to create a federal framework for “combating the

employment of illegal aliens.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002); see id.

at 155 (Breyer, J., dissenting) (“[T]he general purpose

of [IRCA’s] employment prohibition is to diminish the

attractive force of employment, which like a ‘magnet’

pulls illegal immigrants toward the United States.”) (citation omitted). The reading of Section 1324a(b)(5)

adopted by the Kansas Supreme Court and endorsed by

respondents would produce results that have nothing to

do with that purpose. Although state and federal taxwithholding forms may, as a matter of practice, be submitted to employers at roughly the same time as I-9s

(and other documents such as payroll direct-deposit

forms), tax-withholding forms (like direct-deposit forms)

19

are required for reasons that have nothing to do with

verifying work authorization—the central function of

the I-9. See p. 3, supra; Rowan Cos. v. United States,

452 U.S. 247, 256-257 (1981) (discussing the history of

tax withholding). Moreover, under the logic of the decision below, Kansas would be barred from using any

information contained in a defendant’s I-9—including

basic identity information like the defendant’s name,

birthdate, address, and phone number, see App., infra,

15a—in any prosecution for any crime, even one that

has nothing to do with employment, and even if the

State never sees the I-9. See Pet. App. 45 (Stegall, J.,

dissenting). For example, the State would be barred

from using a suspected drug dealer’s address or phone

number in an application for a search warrant, so long

as the suspect included that information on his I-9. And

because all employees—citizens and aliens alike—must

submit I-9s, see p. 3, supra, the logic of the decision below would restrict the State’s ability to prosecute virtually everyone who has a job.

In addition, the Kansas Supreme Court’s reasoning

“appears to wipe numerous criminal laws off the books”

entirely. Pet. App. 45 (Stegall, J., dissenting). It would

seem impossible to prosecute identity theft, for example, if the State cannot rely on basic identity information such as a defendant’s name. Ibid. Proving state

crimes that depend on age, from underage drinking to

statutory rape, would also be virtually impossible if the

birthdates of the relevant parties (including the victims)

are “contained in” I-9s and therefore inadmissible under the logic of the decision below. And if the Kansas

Supreme Court’s reading of Section 1324a(b)(5) were

adopted by this Court, many federal criminal prosecu-

20

tions would also be disrupted. Section 1324a(b)(5) allows “use[]” of information “contained in” an I-9 for only

four federal crimes, but many crimes that rely heavily

on identity information are not included. For example,

prosecutions for aggravated identity theft, 18 U.S.C.

1028A, misuse of a social security number, 42 U.S.C.

408(a), and numerous other forms of fraud not covered

by Section 1324a(b)(5) depend on identity information

generally contained in the I-9 of anyone who has a job.

On top of that, the Kansas Supreme Court’s reasoning would invite fraud on I-9s. Identity thieves who use

fraudulent information on other documents would have

an incentive to duplicate that information on their I-9s

as a means of preventing States from using the information in an identity-theft prosecution. Converting the

I-9 into a “Get Out of Jail Free” card would undermine

both IRCA’s purpose and common sense. Pet. App. 107;

see, e.g., Cedric Kushner Promotions, Ltd. v. King,

533 U.S. 158, 165 (2001) (rejecting an interpretation

that “would immunize from [criminal] liability many of

those at whom this Court has said [the relevant statute]

directly aims”). Simply put, “[t]here is no basis in law,

fact, or logic” for the Kansas Supreme Court’s decision.

Whiting, 563 U.S. at 597; cf. Medtronic, Inc. v. Lohr,

518 U.S. 470, 487 (1996) (plurality opinion) (rejecting

express-preemption argument that “is not only unpersuasive, [but] is implausible”).

b. Rather than defend such untenable results, respondents point (Br. in Opp. 7, 13, 20) to language in the

Kansas Supreme Court’s opinion (Pet. App. 20, 28) suggesting that the decision applies only to “alien[s].” But

respondents identify no basis in the court’s reasoning

or Section 1324a(b)(5) to support such a limitation. Unlike other provisions of the INA, Section 1324a(b)(5)

21

does not differentiate between citizens and aliens. Cf.

8 U.S.C. 1325 (providing that “[a]ny alien” who crosses

the border illegally shall be punished). And as noted,

IRCA requires verification of all employees, citizens

and aliens alike. See p. 3, supra.

Even if respondents’ proffered limitation were possible, it would produce untenable results of its own. On

respondents’ reading of the decision below, Kansas

could prosecute a U.S. citizen who presents an employer

with a false social security number (for example, to conceal a prior criminal conviction or to hide income from

the government) but the State could not prosecute an

alien who presents an employer with the same false social security number (regardless of the purpose). “[N]o

such limit is remotely discernible in the statutory text”

of IRCA, and Congress gave no other indication that it

meant to grant aliens unique immunity to violate generally applicable state criminal laws free of state criminal

prosecution. Whiting, 563 U.S. at 599; cf. Medtronic,

518 U.S. at 487 (plurality opinion) (rejecting preemption

claim that would “have the perverse effect of granting

complete immunity from [state-law] liability to an entire” category of defendants without any support in the

federal statutory scheme).

B. IRCA Does Not Impliedly Preempt The Prosecutions

The Kansas Supreme Court “dispose[d] of ” this case

on “express preemption” grounds and declined to “decide the merits of any other” preemption theory. Pet.

App. 27-28. The concurring Justice below, however,

concluded that IRCA impliedly preempted the prosecutions, id. at 31-38, and respondents contend (Br. in Opp.

20-27) that the judgment can be affirmed on that ground.

Respondents are mistaken. IRCA does not impliedly

22

preempt the prosecutions on either a field-preemption

or a conflict-preemption theory.

1. IRCA does not impliedly preempt the prosecutions

through field preemption

Under the doctrine of field preemption, “States are

precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.”

Arizona v. United States, 567 U.S. 387, 399 (2012). A

successful field-preemption claim thus must establish

(1) that Congress has occupied a particular field, and (2)

that the challenged state law “falls within the preempted field.” Oneok, Inc. v. Learjet, Inc., 135 S. Ct.

1591, 1599 (2015). Respondents’ claim fails at both

steps. IRCA does not preempt either of the fields that

respondents suggest it does (Br. in Opp. 21-22). And

even if it did, respondents’ prosecutions would not be

preempted because they do not fall within either of the

allegedly preempted fields.

1. The first step in a field-preemption analysis is to

identify the allegedly preempted field. “Every Act of

Congress occupies some field, but [courts] must know

the boundaries of that field before [they] can say that it

has precluded a state from the exercise of any power

reserved to it by the Constitution.” De Canas v. Bica,

424 U.S. 351, 360 n.8 (1976) (citation omitted).

a. Respondents contend that Congress has broadly

occupied the “field of ‘unauthorized employment of aliens.’ ” Br. in Opp. 22 (quoting Arizona, 567 U.S. at 406).

But respondents cite nothing in the text of IRCA to support that assertion, and IRCA’s text refutes it. IRCA

prohibits the hiring of unauthorized aliens and prescribes sanctions for employer violations, 8 U.S.C.

23

1324a(a) and (e)-(f ), but nothing in IRCA states or suggests that those provisions are “exclusive” or “ ‘so pervasive’ ” that “ ‘Congress left no room for the States to’ ”

act in the entire field of employment of unauthorized aliens. Arizona, 567 U.S. at 399 (citation omitted).

To the contrary, where Congress sought to disable

state or local action on subjects covered by IRCA, Congress did so expressly. Section 1324a(h)(2), entitled

“Preemption,” states that the “provisions of [IRCA]

preempt any State or local law imposing civil or criminal

sanctions (other than through licensing and similar

laws) upon those who employ * * * unauthorized aliens.” 8 U.S.C. 1324a(h)(2). Respondents do not contend that Section 1324a(h)(2), which pertains only to

employer sanctions, expressly preempts their prosecutions. And Section 1324a(h)(2) directly undermines respondents’ contention that Congress occupied the field

of the employment of unauthorized aliens. If Congress

had actually occupied that field, the preemption clause

of Section 1324a(h)(2) would be superfluous, and the

“saving clause” permitting state regulation of the employment of unauthorized aliens through “ ‘licensing and

similar laws’ ” would be inoperative. Whiting, 563 U.S.

at 587 (citation omitted); see Cipollone, 505 U.S. at 547

(Scalia, J., concurring in the judgment in part and dissenting in part) (“The existence of an express pre-emption provision tends to contradict any inference that

Congress intended to occupy a field broader than the

statute’s express language defines.”).

The only authority respondents cite for their assertion that IRCA occupies the “field of ‘unauthorized employment of aliens’” is this Court’s decision in Arizona.

Br. in Opp. 22 (quoting Arizona, 567 U.S. at 406). But

Arizona cuts against their position. In Arizona, this

24

Court evaluated the federal government’s claim that

several provisions of an Arizona statute were preempted. 567 U.S. at 393-394. The Court first held that a

provision criminalizing failure to carry an alienregistration document as required by federal law was

field preempted, because the federal government had

“occupied the field of alien registration.” Id. at 401.

The Court then separately considered a provision criminalizing an unauthorized alien’s attempt to seek employment. Id. at 403. In contrast to its holding that the

alien-registration provision was field preempted, the

Court concluded that the alien-employment provision

was conflict preempted, because it constituted an “obstacle to the regulatory system Congress chose.” Id. at

406. The contrast between those portions of the Court’s

decision is telling. The Court would not have needed to

determine whether the alien-employment provision

constituted an “obstacle” to federal law, ibid., if Congress had “occupied the * * * field of ‘unauthorized

employment of aliens.’ ” Br. in Opp. 22 (citation omitted). Respondents’ position is thus inconsistent with

IRCA and this Court’s decisions interpreting it. 3

b. Respondents contend in the alternative that Congress has occupied the narrower field of the “use of false

Respondents’ reliance (Br. in Opp. 21-22) on the Fourth Circuit’s

decision in United States v. South Carolina, 720 F.3d 518 (2013), is

misplaced for similar reasons. The state law at issue in that case

made “it unlawful for any person to display or possess a false or

counterfeit ID for the purpose of proving lawful presence in the

United States.” Id. at 532. Relying on Arizona’s holding that Congress has occupied the field of alien registration, the court concluded that the South Carolina law was field preempted. Id. at 533.

But that law regulating an alien’s presence, like the alien-registration at issue in Arizona, did not regulate employment.

3

25

documents * * * when an unauthorized alien seeks employment.” Br. in Opp. 21 (quoting Pet. App. 35-36

(Luckert, J., concurring)). That contention fails for similar reasons. Congress has established penalties for

document fraud undertaken to establish work-authorization and other immigration-related fraud, see 8 U.S.C.

1324c(a)(1) and (d)(3); 18 U.S.C. 1546, but nothing in

IRCA indicates that Congress intended those penalties

to be “exclusive” or “ ‘so pervasive’ ” that “ ‘Congress left

no room for the States to’ ” act in the entire field. Arizona, 567 U.S. at 399 (citation omitted). Respondents’

claim of field preemption is particularly strained given

the States’ historic regulation of identity theft and similar crimes, see p. 5, supra, and this Court’s instruction

that Congress’s intent to preempt a field “ ‘traditionally

occupied by the States’ * * * must be ‘clear and manifest.’ ” English v. General Elec. Co., 496 U.S. 72, 79

(1990) (citations omitted).

Respondents’ claim is also flatly inconsistent with

this Court’s decision in Whiting. There, the Court rejected a conflict-preemption challenge to an Arizona

statute requiring state employers to use E-Verify—a

mechanism for verifying the work authorization of prospective employees. 563 U.S. at 590, 608-609. The

Court would not have considered that challenge under

conflict preemption, let alone upheld the state law, if

Congress had in fact preempted the field of the “use of

false documents * * * when an unauthorized alien

seeks employment.” Br. in Opp. 21 (citation omitted);

see Arizona, 567 U.S. at 401 (“Field pre-emption reflects a congressional decision to foreclose any state

regulation in the area, even if it is parallel to federal

standards.”) (emphasis added).

26

c. Finally, both of respondents’ field-preemption

theories are flawed because they assert that Congress

preempted fields specifically involving the employment

of unauthorized aliens. Br. in Opp. 21-22. As noted

above, however, nothing in IRCA supports a distinction

between citizens and aliens. See pp. 20-21, supra. And

respondents’ position would produce the anomalous result that a State could prosecute a U.S. citizen or authorized alien who commits identity theft by presenting

an employer with a false social security number (for example, to conceal a prior criminal conviction or hide income from the government) but could not prosecute an

unauthorized alien who presents an employer with the

same false social security number to obtain employment. Creating such preferential treatment for unauthorized aliens was hardly the “purpose of Congress” in

enacting IRCA. Hughes, 136 S. Ct. at 1297 (citation

omitted).

2. In any event, even if Congress had occupied the

fields respondents suggest, the prosecutions at issue

would not be preempted because the state laws under

which respondents were prosecuted do not regulate either “ ‘unauthorized employment of aliens,’ ” or “the ‘use

of false documents * * * when an unauthorized alien

seeks employment.’ ” Br. in Opp. 21-22 (citations omitted). To the contrary, the laws are “generally applicable” statutes that regulate specified forms of fraud in

any context and apply equally to aliens and non-aliens

alike. Pet. App. 20. Thus, a prospective employee who

submits someone else’s social security number on a taxwithholding form is guilty of identity theft regardless of

whether the employee is a citizen, an alien authorized to

work, or an alien unauthorized to work. The same person would also be guilty of identity theft for submitting

27

a loan application, a benefits claim, or a credit-card

transaction using false identity information, even

though those forms of fraud have nothing to do with employment. By the same token, an unauthorized alien

who submits a truthful tax-withholding form is not

guilty of identity theft or making a false information

even if he is hired and begins work unlawfully. In short,

the Kansas identity-theft and false-information statutes

do not “have anything to do with the employmentrelated verification of immigration status.” Id. at 105;

see Pet. Br. 7 (citing identity-theft prosecutions of nonaliens in non-employment contexts).

Respondents’ prosecutions are accordingly not field

preempted. In conducting field-preemption analysis,

this Court has “emphasize[d] the importance of considering the target at which the state law aims in determining whether that law is” preempted. Oneok,

135 S. Ct. at 1599. The Court has held, for example, that

generally applicable state antitrust laws “not aimed at

natural-gas companies in particular, but rather all businesses in the marketplace” are not within the field

preempted by the federal Natural Gas Act, 15 U.S.C.

717 et seq. Oneok, 135 S. Ct. at 1601. Similarly, the

Court has held that general state tort laws that might

“in some remote way affect * * * nuclear safety decisions” are not “within the pre-empted field” established

by the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.

English, 496 U.S. at 84-85. And of particular relevance

here, the Court concluded that state regulations of alien

employment adopted before IRCA were not within the

field preempted by the INA. De Canas, 424 U.S. at 362.

28

As the Court explained, “the fact that aliens are the subject of a state statute does not render it a regulation of

immigration.” Id. at 355. 4

The logic of those decisions “supports a finding of no

pre-emption.” Oneok, 135 S. Ct. at 1601. The fact that

Kansas’s generally applicable prohibitions on identity

theft and related crimes can be applied to unauthorized

aliens who submit false documents to their employer

does not mean those laws regulate the “field of ‘unauthorized employment of aliens,’ ” Br. in Opp. 22 (citation

omitted), any more than generally applicable state antitrust laws regulate the field of natural gas, or generally

applicable state tort laws regulate the field of nuclear

safety. Likewise, the fact that respondents were prosecuted for committing identity theft on forms submitted

to an employer does not mean that the prosecutions regulated the field of unauthorized-alien employment, any

more than prosecutions for identity theft in depositing

a check would constitute regulation in the field of banking. The prosecutions are not field preempted.

2. IRCA does not impliedly preempt the prosecutions

through conflict preemption

Respondents also contend (Br. in Opp. 23) that their

prosecutions are impliedly preempted by “the doctrine

of conflict preemption.” As relevant here, conflict preemption exists when a “state law ‘stands as an obstacle

to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Arizona, 567 U.S.

at 399 (citation omitted).

Although the particular California law at issue in De Canas

would be expressly preempted by IRCA, see Whiting, 563 U.S. at

590, this Court has continued to rely on the reasoning of De Canas

in conducting preemption analysis, see id. at 601 (plurality opinion).

4

29

Respondents do not seriously contend that prosecuting their identity-theft and related crimes actually undermined any federal purpose or objective. Punishing

such criminal conduct is plainly consistent with Congress’s purposes and objectives, given that Congress

has also criminalized identity theft and similar offenses.

See, e.g., 18 U.S.C. 1028, 1028A, 1546. Moreover, federal law-enforcement officials worked alongside Kansas

authorities in investigating and prosecuting respondents. See Pet. App. 3, 6, 73. For example, a federal Social Security Administration agent testified at trial that

using someone else’s social security number could create numerous problems for federal programs and beneficiaries, including disqualifying victims of identity theft

from eligibility for federal benefits because of false reports that they were earning income. Id. at 6.

Respondents’ principal argument is that allowing

their prosecutions “frustrates congressional purpose

and provides an obstacle to the implementation of federal immigration policy by usurping federal enforcement discretion in the field of unauthorized employment

of aliens.” Br. in Opp. 23 (quoting Pet. App. 36 (Luckert, J., concurring)). That contention is flawed for multiple reasons. As explained above, see pp. 26-28, supra,

Kansas’s identity-theft and false-information statutes

do not regulate “the field of unauthorized employment

of aliens,” so they cannot “usurp[] federal enforcement

discretion” in that field. Br. in Opp. 23 (citations omitted). Indeed, respondents’ prosecutions were based on

tax-withholding forms that had nothing to with verifying employment authorization. See pp. 14-16, supra.

And it is difficult to view the prosecutions as a usurpa-

30

tion of federal discretion given that federal agents voluntarily participated in the investigation and criminal

proceedings. See pp. 28-29, supra.

Respondents rely primarily (Br. in Opp. 24-26) on

this Court’s holding in Arizona that allowing state criminal prosecutions of aliens seeking employment would

“interfere with the careful balance struck by Congress”

in IRCA and create “an obstacle to the regulatory system Congress chose.” 567 U.S. at 406. But that holding

was premised on the Court’s determination that Congress had made a “deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Id. at 405; see ibid. (“IRCA’s

framework reflects a considered judgment that making

criminals out of aliens engaged in unauthorized

work * * * would be inconsistent with federal policy

and objectives.”). Unlike Arizona, this case does not involve a State’s effort to impose criminal liability on aliens for seeking unauthorized employment. It involves

prosecutions for using someone else’s social security

number, regardless of citizenship or work-authorization

status. Respondents do not suggest that IRCA contains

a “deliberate choice” or “considered judgment” against

criminally punishing the use of another person’s social

security number. Ibid. Arizona accordingly provides

no support for respondents’ conflict-preemption claim.

Respondents’ contention (Br. in Opp. 26) that conflict preemption bars state prosecutions of unauthorized aliens for “offenses relating to employment eligibility” would also create numerous anomalies. As discussed above, barring state prosecutions of unauthorized aliens who commit identity theft to establish employment eligibility, but allowing state prosecutions of

U.S. citizens or authorized aliens who do the same (for

31

example, to hide a disqualifying prior criminal conviction), would inexplicably provide unauthorized alien

criminals with immunities not enjoyed by U.S. citizens

or aliens authorized to work. See pp. 20-21, 25-26, supra. In addition, under respondents’ theory, a State

could prosecute an alien who uses a fraudulent social security number on a tax-withholding form to avoid garnishment of his wages for back taxes or child support because

such fraud did not “relat[e] to employment eligibility.”

Br. in Opp. 26. But the State could not prosecute an alien

who uses a fraudulent social security number on a taxwithholding form as part of an effort to establish work authorization, because that fraud was “relat[ed] to employment eligibility.” Ibid. Respondents’ theory thus makes

conflict preemption of state laws turn on the subjective

motive of private parties regulated by those laws. There

is no basis in IRCA or elsewhere for that impractical and

counterintuitive limitation.

Ultimately, respondents’ position stems in part from

concerns that Kansas could selectively enforce its criminal laws against aliens as an end-run around federal immigration policies. Br. in Opp. 25. The State disputes

that suggestion, noting that it prosecutes identity-theft

crimes without regard to citizenship or nationality. Pet.

Br. 7. This Court need not resolve that dispute here.

If, as explained above, prosecutions under Kansas’s

identity-theft law do not conflict with IRCA, concerns

about selective enforcement—whatever their relevance

to other types of claims or defenses—are not relevant

to the implied-preemption analysis under IRCA. “Implied pre-emption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives.’ ” Whiting, 563 U.S. at 607

32

(plurality opinion) (citation omitted). Because respondents have not shown that their prosecutions for violating Kansas law conflict with IRCA, their conflictpreemption claims cannot succeed.

CONCLUSION

The judgment of the Kansas Supreme Court should

be reversed.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOSEPH H. HUNT

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

HASHIM M. MOOPPAN

Deputy Assistant Attorney

General

CHRISTOPHER G. MICHEL

Assistant to the Solicitor

General

MARK B. STERN

LINDSEY POWELL

Attorneys

MAY 2019

APPENDIX

1.

8 U.S.C. 1324a provides in pertinent part:

Unlawful employment of aliens

(a)

Making employment of unauthorized aliens unlawful

(1)

In general

It is unlawful for a person or other entity—

(A) to hire, or to recruit or refer for a fee,

for employment in the United States an alien

knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or

(B)(i) to hire for employment in the United

States an individual without complying with the

requirements of subsection (b) of this section or

(ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to

hire, or to recruit or refer for a fee, for employment in the United States an individual without

complying with the requirements of subsection

(b) of this section.

(2)

Continuing employment

It is unlawful for a person or other entity, after

hiring an alien for employment in accordance with

paragraph (1), to continue to employ the alien in the

United States knowing the alien is (or has become) an

unauthorized alien with respect to such employment.

(1a)

2a

(3)

Defense

A person or entity that establishes that it has

complied in good faith with the requirements of subsection (b) of this section with respect to the hiring,

recruiting, or referral for employment of an alien in

the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting,

or referral.

(4)

Use of labor through contract

For purposes of this section, a person or other

entity who uses a contract, subcontract, or exchange,

entered into, renegotiated, or extended after November 6, 1986, to obtain the labor of an alien in the

United States knowing that the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to performing such labor, shall be

considered to have hired the alien for employment in

the United States in violation of paragraph (1)(A).

(5)

Use of State employment agency documentation

For purposes of paragraphs (1)(B) and (3), a person or entity shall be deemed to have complied with

the requirements of subsection (b) of this section

with respect to the hiring of an individual who was

referred for such employment by a State employment agency (as defined by the Attorney General), if

the person or entity has and retains (for the period

and in the manner described in subsection (b)(3) of

this section) appropriate documentation of such referral by that agency, which documentation certifies

that the agency has complied with the procedures

3a

specified in subsection (b) of this section with respect to the individual’s referral.

(6)

Treatment of documentation for certain employees

(A)

In general

For purposes of this section, if—

(i) an individual is a member of a collectivebargaining unit and is employed, under a collective bargaining agreement entered into between one or more employee organizations and

an association of two or more employers, by an

employer that is a member of such association,

and

(ii) within the period specified in subparagraph (B), another employer that is a member of the association (or an agent of such association on behalf of the employer) has complied with the requirements of subsection (b)

of this section with respect to the employment

of the individual,

the subsequent employer shall be deemed to have

complied with the requirements of subsection (b)

of this section with respect to the hiring of the

employee and shall not be liable for civil penalties

described in subsection (e)(5) of this section.

(B)

Period

The period described in this subparagraph is

3 years, or, if less, the period of time that the individual is authorized to be employed in the

United States.

4a

(C)

Liability

(i)

In general

If any employer that is a member of an association hires for employment in the United

States an individual and relies upon the provisions of subparagraph (A) to comply with the

requirements of subsection (b) of this section

and the individual is an alien not authorized to

work in the United States, then for the purposes of paragraph (1)(A), subject to clause (ii),

the employer shall be presumed to have known

at the time of hiring or afterward that the individual was an alien not authorized to work in

the United States.

(ii)

Rebuttal of presumption

The presumption established by clause (i)

may be rebutted by the employer only through

the presentation of clear and convincing evidence that the employer did not know (and

could not reasonably have known) that the individual at the time of hiring or afterward was

an alien not authorized to work in the United

States.

(iii)

Exception

Clause (i) shall not apply in any prosecution

under subsection (f )(1) of this section.

(7)

Application to Federal Government

For purposes of this section, the term “entity”

includes an entity in any branch of the Federal

Government.

5a

(b)

Employment verification system

The requirements referred to in paragraphs (1)(B)

and (3) of subsection (a) of this section are, in the case of

a person or other entity hiring, recruiting, or referring an

individual for employment in the United States, the requirements specified in the following three paragraphs:

(1)

Attestation after examination of documentation

(A)

In general

The person or entity must attest, under penalty of perjury and on a form designated or established by the Attorney General by regulation,

that it has verified that the individual is not an

unauthorized alien by examining—

(i) a document described in subparagraph

(B), or

(ii) a document described in subparagraph

(C) and a document described in subparagraph (D).

Such attestation may be manifested by either a

hand-written or an electronic signature. A person or entity has complied with the requirement

of this paragraph with respect to examination of

a document if the document reasonably appears

on its face to be genuine. If an individual provides a document or combination of documents

that reasonably appears on its face to be genuine

and that is sufficient to meet the requirements of

the first sentence of this paragraph, nothing in

this paragraph shall be construed as requiring

the person or entity to solicit the production of

6a

any other document or as requiring the individual

to produce such another document.

(B)

Documents establishing both employment

authorization and identity

A document described in this subparagraph is

an individual’s—

(i)

United States passport; 1

(ii) resident alien card, alien registration

card, or other document designated by the

Attorney General, if the document—

(I)

contains a photograph of the individual and such other personal identifying

information relating to the individual as the

Attorney General finds, by regulation, sufficient for purposes of this subsection,

(II) is evidence of authorization of employment in the United States, and

(III) contains security features to make

it resistant to tampering, counterfeiting,

and fraudulent use.

(C)

Documents evidencing employment authorization

A document described in this subparagraph is

an individual’s—

(i) social security account number card

(other than such a card which specifies on the

face that the issuance of the card does not authorize employment in the United States); or

1

So in original.

Probably should be followed by “or”.

7a

(ii) other documentation evidencing authorization of employment in the United States

which the Attorney General finds, by regulation,

to be acceptable for purposes of this section.

(D)

Documents establishing identity of individual

A document described in this subparagraph is

an individual’s—

(i) driver’s license or similar document issued for the purpose of identification by a State,

if it contains a photograph of the individual or

such other personal identifying information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes

of this section; or

(ii) in the case of individuals under 16 years

of age or in a State which does not provide for

issuance of an identification document (other

than a driver’s license) referred to in clause (i),

documentation of personal identity of such other

type as the Attorney General finds, by regulation, provides a reliable means of identification.

(E)

Authority to prohibit use of certain documents

If the Attorney General finds, by regulation,

that any document described in subparagraph (B),

(C), or (D) as establishing employment authorization or identity does not reliably establish such

authorization or identity or is being used fraudulently to an unacceptable degree, the Attorney

General may prohibit or place conditions on its

use for purposes of this subsection.

8a

(2)

Individual attestation of employment authorization

The individual must attest, under penalty of perjury on the form designated or established for purposes of paragraph (1), that the individual is a citizen

or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is

authorized under this chapter or by the Attorney

General to be hired, recruited, or referred for such

employment. Such attestation may be manifested

by either a hand-written or an electronic signature.

(3)

Retention of verification form

After completion of such form in accordance with

paragraphs (1) and (2), the person or entity must

retain a paper, microfiche, microfilm, or electronic

version of the form and make it available for inspection by officers of the Service, the Special Counsel

for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period

beginning on the date of the hiring, recruiting, or

referral of the individual and ending—

(A) in the case of the recruiting or referral

for a fee (without hiring) of an individual, three

years after the date of the recruiting or referral,

and

(B)

in the case of the hiring of an individual—

(i) three years after the date of such hiring, or

(ii) one year after the date the individual’s

employment is terminated, whichever is later.

9a

(4)

Copying of documentation permitted

Notwithstanding any other provision of law, the

person or entity may copy a document presented by

an individual pursuant to this subsection and may

retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with

the requirements of this subsection.

(5)

Limitation on use of attestation form

A form designated or established by the Attorney

General under this subsection and any information

contained in or appended to such form, may not be

used for purposes other than for enforcement of this

chapter and sections 1001, 1028, 1546, and 1621 of

title 18.

(6)

Good faith compliance

(A)

In general

Except as provided in subparagraphs (B) and

(C), a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to

meet such requirement if there was a good faith

attempt to comply with the requirement.

(B)

Exception if failure to correct after notice

Subparagraph (A) shall not apply if—

(i) the Service (or another enforcement

agency) has explained to the person or entity

the basis for the failure,

(ii) the person or entity has been provided

a period of not less than 10 business days (be-

10a

ginning after the date of the explanation) within

which to correct the failure, and

(iii) the person or entity has not corrected

the failure voluntarily within such period.

(C)

Exception for pattern or practice violators

Subparagraph (A) shall not apply to a person

or entity that has or is engaging in a pattern or

practice of violations of subsection (a)(1)(A) or

(a)(2) of this section.

*

*

*

*

*

(h) Miscellaneous provisions

(1)

Documentation

In providing documentation or endorsement of

authorization of aliens (other than aliens lawfully

admitted for permanent residence) authorized to be

employed in the United States, the Attorney General shall provide that any limitations with respect

to the period or type of employment or employer

shall be conspicuously stated on the documentation

or endorsement.

(2)

Preemption

The 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.

11a

(3)

Definition of unauthorized alien

As used in this section, the term “unauthorized

alien” means, with respect to the employment of

an alien at a particular time, that the alien is not at

that time either (A) an alien lawfully admitted for

permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

2.

Kan. Stat. Ann. § 21-5824 (Supp. 2017) provides:

Making false information. (a)

Making false information is making, generating, distributing or drawing, or

causing to be made, generated, distributed or drawn,

any written instrument, electronic data or entry in a

book of account with knowledge that such information

falsely states or represents some material matter or is

not what it purports to be, and with intent to defraud,

obstruct the detection of a theft or felony offense or

induce official action.

(b) Making false information is a severity level 8,

nonperson felony.

3.

Kan. Stat. Ann. § 21-6107 (Supp. 2017) provides:

(a) Identity theft is obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to

another person, with the intent to:

Identity theft; identity fraud.

(1) Defraud that person, or anyone else, in order

to receive any benefit; or

12a

(2) misrepresent that person in order to subject

that person to economic or bodily harm.

(b)

Identity fraud is:

(1) Using or supplying information the person

knows to be false in order to obtain a document containing any personal identifying information; or

(2) altering, amending, counterfeiting, making,

manufacturing or otherwise replicating any document

containing personal identifying information with the intent to deceive;

(c)(1)

Identity theft is a:

(A) Severity level 8, nonperson felony, except as

provided in subsection (c)(1)(B); and

(B) severity level 5, nonperson felony if the monetary loss to the victim or victims is more than $100,000.

(2)

felony.

Identity fraud is a severity level 8, nonperson

(d) It is not a defense that the person did not know

that such personal identifying information belongs to

another person, or that the person to whom such personal identifying information belongs or was issued is

deceased.

(e)

As used in this section:

(1) “Personal electronic content” means the electronically stored content of an individual including, but

not limited to, pictures, videos, emails or other data

files;

13a

(2) “personal identifying information” includes, but

is not limited to, the following:

(A)

Name;

(B)

birth date;

(C)

address;

(D)

telephone number;

(E) driver’s license number or card or nondriver’s

identification number or card;

(F)

social security number or card;

(G)

place of employment;

(H) employee identification numbers or other personal identification numbers or cards;

(I)

mother’s maiden name;

(J)

birth, death or marriage certificates;

(K)

electronic identification numbers;

(L)

electronic signatures;

(M) any financial number, or password that can be

used to access a person’s financial resources, including,

but not limited to, checking or savings accounts, credit

or debit card information, demand deposit or medical

information; and

(N) passwords, usernames or other log-in information that can be used to access a person’s personal

electronic content, including, but not limited to, content

stored on a social networking website; and

(3) “social networking website” means a privacyprotected internet website which allows individuals to

construct a public or semi-public profile within a bounded

14a

system created by the service, create a list of other

users with whom the individual shares a connection

within the system and view and navigate the list of

users with whom the individual shares a connection and

those lists of users made by others within the system.

USCIS

Form I-9

Employment Eligibility Verification

Department of Homeland Security

U.S. Citizenship and Immigration Services

OMB No. 1615-0047

Expires 08/31/2019

►START HERE: Read instructions carefully before completing this form. The instructions must be available, either in paper or electronically,

during completion of this form. Employers are liable for errors in the completion of this form.

ANTI-DISCRIMINATION NOTICE: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which

document(s) an employee may present to establish employment authorization and identity. The refusal to hire or continue to employ

an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

Section 1. Employee Information and Attestation (Employees must complete and sign Section 1 of Form I-9 no later

than the first day of employment, but not before accepting a job offer.)

Last Name (Family Name)

First Name (Given Name)

Address (Street Number and Name)

Date of Birth (mm/dd/yyyy)

Apt. Number

U.S. Social Security Number

-

Middle Initial

Other Last Names Used (if any)

State

City or Town

ZIP Code

Employee's Telephone Number

Employee's E-mail Address

-

I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in

connection with the completion of this form.

I attest, under penalty of perjury, that I am (check one of the following boxes):

1. A citizen of the United States

2. A noncitizen national of the United States (See instructions)

3. A lawful permanent resident

(Alien Registration Number/USCIS Number):

4. An alien authorized to work

until (expiration date, if applicable, mm/dd/yyyy):

Some aliens may write "N/A" in the expiration date field. (See instructions)

QR Code - Section 1

Do Not Write In This Space

Aliens authorized to work must provide only one of the following document numbers to complete Form I-9:

An Alien Registration Number/USCIS Number OR Form I-94 Admission Number OR Foreign Passport Number.

1. Alien Registration Number/USCIS Number:

OR

2. Form I-94 Admission Number:

OR

3. Foreign Passport Number:

Country of Issuance:

Today's Date (mm/dd/yyyy)

Signature of Employee

Preparer and/or Translator Certification (check one):

I did not use a preparer or translator.

A preparer(s) and/or translator(s) assisted the employee in completing Section 1.

(Fields below must be completed and signed when preparers and/or translators assist an employee in completing Section 1.)

I attest, under penalty of perjury, that I have assisted in the completion of Section 1 of this form and that to the best of my

knowledge the information is true and correct.

Today's Date (mm/dd/yyyy)

Signature of Preparer or Translator

Last Name (Family Name)

Address (Street Number and Name)

First Name (Given Name)

City or Town

State

ZIP Code

Employer Completes Next Page

Form I-9 07/17/17 N

Page 1 of 3

USCIS

Form I-9

Employment Eligibility Verification

Department of Homeland Security

U.S. Citizenship and Immigration Services

OMB No. 1615-0047

Expires 08/31/2019

Section 2. Employer or Authorized Representative Review and Verification

(Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee's first day of employment. You

must physically examine one document from List A OR a combination of one document from List B and one document from List C as listed on the "Lists

of Acceptable Documents.")

Employee Info from Section 1

Last Name (Family Name)

List A

Identity and Employment Authorization

First Name (Given Name)

OR

List B

M.I.

AND

Identity

Citizenship/Immigration Status

List C

Employment Authorization

Document Title

Document Title

Document Title

Issuing Authority

Issuing Authority

Issuing Authority

Document Number

Document Number

Document Number

Expiration Date (if any)(mm/dd/yyyy)

Expiration Date (if any)(mm/dd/yyyy)

Expiration Date (if any)(mm/dd/yyyy)

Document Title

QR Code - Sections 2 & 3

Do Not Write In This Space

Additional Information

Issuing Authority

Document Number

Expiration Date (if any)(mm/dd/yyyy)

Document Title

Issuing Authority

Document Number

Expiration Date (if any)(mm/dd/yyyy)

Certification: I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee,

(2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the

employee is authorized to work in the United States.

The employee's first day of employment (mm/dd/yyyy):

Signature of Employer or Authorized Representative

Last Name of Employer or Authorized Representative

(See instructions for exemptions)

Today's Date (mm/dd/yyyy)

Title of Employer or Authorized Representative

First Name of Employer or Authorized Representative

Employer's Business or Organization Address (Street Number and Name)

City or Town

Employer's Business or Organization Name

State

ZIP Code

Section 3. Reverification and Rehires (To be completed and signed by employer or authorized representative.)

A. New Name (if applicable)

Last Name (Family Name)

B. Date of Rehire (if applicable)

First Name (Given Name)

Middle Initial

Date (mm/dd/yyyy)

C. If the employee's previous grant of employment authorization has expired, provide the information for the document or receipt that establishes

continuing employment authorization in the space provided below.

Document Title

Document Number

Expiration Date (if any) (mm/dd/yyyy)

I attest, under penalty of perjury, that to the best of my knowledge, this employee is authorized to work in the United States, and if

the employee presented document(s), the document(s) I have examined appear to be genuine and to relate to the individual.

Signature of Employer or Authorized Representative

Form I-9 07/17/17 N

Today's Date (mm/dd/yyyy)

Name of Employer or Authorized Representative

Page 2 of 3

LISTS OF ACCEPTABLE DOCUMENTS

All documents must be UNEXPIRED

Employees may present one selection from List A

or a combination of one selection from List B and one selection from List C.

LIST A

LIST B

Documents that Establish

Both Identity and

Employment Authorization

Documents that Establish

Identity

1. U.S. Passport or U.S. Passport Card

2. Permanent Resident Card or Alien

Registration Receipt Card (Form I-551)

3. Foreign passport that contains a

temporary I-551 stamp or temporary

I-551 printed notation on a machinereadable immigrant visa

4. Employment Authorization Document

that contains a photograph (Form

I-766)

5. For a nonimmigrant alien authorized

to work for a specific employer

because of his or her status:

a. Foreign passport; and

b. Form I-94 or Form I-94A that has

the following:

(1) The same name as the passport;

and

(2) An endorsement of the alien's

nonimmigrant status as long as

that period of endorsement has

not yet expired and the

proposed employment is not in

conflict with any restrictions or

limitations identified on the form.

6. Passport from the Federated States of

Micronesia (FSM) or the Republic of

the Marshall Islands (RMI) with Form

I-94 or Form I-94A indicating

nonimmigrant admission under the

Compact of Free Association Between

the United States and the FSM or RMI

OR

LIST C

Documents that Establish

Employment Authorization

AND

1. Driver's license or ID card issued by a

State or outlying possession of the

United States provided it contains a

photograph or information such as

name, date of birth, gender, height, eye

color, and address

2. ID card issued by federal, state or local

government agencies or entities,

provided it contains a photograph or

information such as name, date of birth,

gender, height, eye color, and address

3. School ID card with a photograph

4. Voter's registration card

5. U.S. Military card or draft record

6. Military dependent's ID card

7. U.S. Coast Guard Merchant Mariner

Card

8. Native American tribal document

9. Driver's license issued by a Canadian

government authority

For persons under age 18 who are

unable to present a document

listed above:

1. A Social Security Account Number

card, unless the card includes one of

the following restrictions:

(1) NOT VALID FOR EMPLOYMENT

(2) VALID FOR WORK ONLY WITH

INS AUTHORIZATION

(3) VALID FOR WORK ONLY WITH

DHS AUTHORIZATION

2. Certification of report of birth issued

by the Department of State (Forms

DS-1350, FS-545, FS-240)

3. Original or certified copy of birth

certificate issued by a State,

county, municipal authority, or

territory of the United States

bearing an official seal

4. Native American tribal document

5. U.S. Citizen ID Card (Form I-197)

6. Identification Card for Use of

Resident Citizen in the United

States (Form I-179)

7. Employment authorization

document issued by the

Department of Homeland Security

10. School record or report card

11. Clinic, doctor, or hospital record

12. Day-care or nursery school record

Examples of many of these documents appear in Part 13 of the Handbook for Employers (M-274).

Refer to the instructions for more information about acceptable receipts.

Form I-9 07/17/17 N

Page 3 of 3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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