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.