united-states immigration preemption
Can states and localities have stronger immigration status-based employment discrimination laws than the federal law?
<p><a href="https://www.law.cornell.edu/uscode/text/8/1324b" rel="nofollow noreferrer">8 USC §1324b</a> prohibits employers from discriminating against employees or prospective employees on the basis of immigration status, if the individual in question is</p>
<ul>
<li>a citizen or national of the United States,</li>
<li>a lawful permanent resident (with a proviso that I won't discuss here), or</li>
<li>an asylee or refugee.</li>
</ul>
<p>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.</p>

<p>It is well established that the federal government has complete control over immigration. See especially <a href="https://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf" rel="nofollow noreferrer">Arizona v. US</a> which holds that</p>
<blockquote>
<p>States are precluded from regulating conduct in a field that Congress
has determined must be regulated by its exclusive governance.</p>
</blockquote>
<p><a href="https://supreme.justia.com/cases/federal/us/424/351/" rel="nofollow noreferrer">De Canas v. Bica</a> (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 <em>not</em> (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.</p>
<p>In Arizona the court held that</p>
<blockquote>
<p>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”</p>
</blockquote>
<p>and with respect to issues of immigration,</p>
<blockquote>
<p>Because Congress has occupied the field, even complementary state
regulation is impermissible.</p>
</blockquote>
<p>The <a href="https://www.govinfo.gov/content/pkg/STATUTE-100/pdf/STATUTE-100-Pg3445.pdf" rel="nofollow noreferrer">Immigration Reform and Control Act of 1986</a> 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 &quot;protected individual&quot; was inserted, by <a href="https://www.govinfo.gov/content/pkg/STATUTE-104/pdf/STATUTE-104-Pg4978.pdf#page=77" rel="nofollow noreferrer">Public  Law  101-649</a>, to replace earlier &quot;citizen or intended citizen&quot;. Congress also introduced Temporary Protected Status in §302 of the law, which has specific (more restricted) provisions regarding employment.</p>
<p>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 <em>did</em> 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.</p>
