November 28, 2022

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The Court of Appeals for the First Circuit has issued a notable ruling regarding a state law that barred non-resident workers from hauling logs within Maine under the H-2A visa program. The First Circuit found that plaintiffs challenging the law demonstrated a substantial likelihood of the law preempting under federal immigration law. This ruling has provided a significant degree of clarity in how the circuit analyzes preemption.

The law under question, Public Law 280, barred employers from hiring non-resident workers to haul forest products within state boundaries. However, federal law explicitly allows non-resident workers to enter the United States and haul forest products through the H-2A program. However, employers must demonstrate that they have run into insufficient willing, able, and qualified workers to perform the labor. Furthermore, using the H-2A program must not adversely affect the wages and conditions for US workers. As a result, the district court realized the state law likely preempted, enjoining its enforcement.

Now, the First Circuit has affirmed this ruling. Doing so has provided an important addition to the preemption analysis. According to the court, past preemption inquiries typically occurred when considering the intent and purposes of Congress.

However, the First Circuit also pointed to a shift in how the Supreme Court has performed these inquiries. This shift has questioned the ability of courts to accurately divine the purposes and objectives Congress held in enacting a statute in ruling that otherwise legitimate state laws may prove preempted.

Instead, the First Circuit found that the Supreme Court has adopted a new approach, claiming the effect of the law determines a law’s preemption by federal statute, not the purpose.

Using this new analysis method, the First Circuit found that Public Law 280 conflicts with the H-2A visa program. The H-2A program provides a detailed list of requirements for employers to hire foreign national workers to transport forestry products.

Public Law 280 would forbid employees from performing these authorized tasks and, as a result, is preempted. This realization is a significant case that future litigation will likely reference for federal preemptions.

As this and other recent litigation have shown, the regulatory environment surrounding hiring foreign national and US workers is continuously shifting, presenting employers with a minefield of liability. Nowhere is this more true in the hiring process than in the Employment Eligibility Verification (Form I-9). Therefore, one of the best ways to maintain compliance is to invest in an electronic I-9 management system that can provide step-by-step guidance. It can also safely and conveniently store forms and documentation for future needs.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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