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8 USC §1324b prohibits employers from discriminating against employees or prospective employees on the basis of immigration status, if the individual in question is

  • a citizen or national of the United States,
  • a lawful permanent resident (with a proviso that I won't discuss here), or
  • an asylee or refugee.

I'm wondering whether the existence of 8 USC §1324b rules out the possibility of any stronger state law. For example, suppose a state had a law that says employers can't discriminate against people with Temporary Protected Status (TPS). This doesn't directly conflict with federal law, since TPS people have an immigration status that allows them to work for any employer. However, I am not sure whether the concept of field preemption would apply here.

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  • As a general principle (in the US), all laws define what people are not allowed to do, while the Constitution defines what activities laws are not allowed to prohibit. So it would make sense that Federal prohibitions wouldn't prevent additional State prohibitions (providing they are Constitutional).
    – Ray Butterworth
    Jan 30, 2021 at 1:27
  • It also makes sense that if Congress has the power to make a law in a domain and has done so, that preempts States making competing laws, by disallowing things that Congress has allowed.
    – user6726
    Jan 30, 2021 at 5:37
  • Is there a state or local law that does so?
    – user102008
    Jan 30, 2021 at 18:32
  • The question is whether such a law is preempted, i.e. whether there could be such a law. I don't know of any such state law.
    – user6726
    Jan 30, 2021 at 19:34
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    @user6726: Not necessarily. RCW 49.60.405 says differential treatment on the basis of immigration status is not unfair practice if it is authorized by law. Some jobs are restricted to US citizens by law and obviously it's legal to enforce that. Most illegal aliens are not authorized to work and distinction in hiring based on that would be legal. However, it seems that the Washington law might protect EAD holders (e.g. DACA, TPS, pending AOS, etc.) who are not protected by federal law, and so would be an example of the kind of law asked about in this question.
    – user102008
    Jan 31, 2021 at 19:39

2 Answers 2

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It is well established that the federal government has complete control over immigration. See especially Arizona v. US which holds that

States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance.

De Canas v. Bica (1976), 424 U.S. 351 is also relevant to the application of field preemption to INA. In this case, the courts found that Congress had not (at that point) entered the field of employment of unauthorized workers, so state laws were not preempted by federal law. Laws can change, and with them, potential state powers.

In Arizona the court held that

Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject”

and with respect to issues of immigration,

Because Congress has occupied the field, even complementary state regulation is impermissible.

The Immigration Reform and Control Act of 1986 adds provisions to the Immigration and Nationality Act, including employment-related law, thus Congress has entered the field of regulating immigration with respect to employment. Current 8 USC §1324b arises from various amendments to the INA, where the present expression "protected individual" was inserted, by Public Law 101-649, to replace earlier "citizen or intended citizen". Congress also introduced Temporary Protected Status in §302 of the law, which has specific (more restricted) provisions regarding employment.

The evidence clearly indicates that Congress intended to include employment issues w.r.t. their supreme power regarding immigration. These discrimination provisions are in the field of immigration, and not discrimination legislation (where Congress has not preempted the field). Congressional silence must, in the light of what Congress did say, be interpreted to mean that the US immigration policy only offers certain specific protections, and states cannot add to or subtract from those protections.

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Yes

Providing they do not conflict with the Federal law, states are free to legislate on the same matters. The supremacy clause means that where a state law conflicts with a valid Federal law (i.e. one made within the lawmaking power of the Federal government), the Federal law prevails.

For anti-discrimination law states can (and do) extend the categories of protected persons beyond those in Federal law.

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    What are the arguments for field preemption not applying to this situation? "Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to 'occupy the field' in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it." --Wikipedia
    – Brian
    Jan 30, 2021 at 1:36
  • @Brian this answer has sidestepped the issue of field preemption by opening with "providing they do not conflict with the Federal law." The doctrine of field preemption creates a conflict even if state law is consistent on its face with the federal law. As a thought experiment on preemption, consider what might happen if a state tried to prohibit companies from transferring H-1B workers to an office in that state from an office in another state.
    – phoog
    Jan 30, 2021 at 19:19
  • @phoog I use the word "conflict" differently from you, I guess. Terminologically speaking, "field preemption" is distinct from "conflict preemption", and not a subtype of the latter. Anyway, what's the purpose of this thought experiment? I think there's existing precedent that federal law preempts any state-level restrictions on interstate travel of non-citizens, so it's not necessary to think too hard about it.
    – Brian
    Jan 30, 2021 at 23:34

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