concurring and dissenting:
Angel Tarango is an undocumented alien worker who was severely injured in the course and scope of his employment with a Las Vegas dry wall contractor. After collecting wage, medical, and disability benefits, he submitted a claim for vocational rehabilitation to the SÜS.1 An administrative appeals officer upheld denial of the claim on the ground that providing rehabilitation services to Mr. Tarango would violate the federal Immigration Reform and Control Act (“IRCA”) of 1986. The district court denied Mr. Tarango’s petition for judicial review of that decision.
I would remand this matter for a more fact-intensive determination of his actual ability to undertake substitute employment given his physical limitations. If he is actually employable apart from his immigration status and despite his physical disability, I agree he is ineligible for retraining and rehabilitation under our workers’ compensation laws. If re-employment is not feasible apart from his immigration status, he should be entitled to rehabilitation benefits because IRCA, in my view, does not per se preempt state laws allowing participation in the legal aspects of a rehabilitation program.
Legality of vocational rehabilitation benefits
The majority correctly observes that, under the priorities of NRS 616C.530, legal workers may not receive the benefits of a rehabilitation program if they can re-enter the workforce in one of *458the enumerated capacities. Accordingly, if Mr. Tarango would be re-employable but for his undocumented status, he would be ineligible as a matter of state law for retraining and rehabilitation. Thus, if Mr. Tarango is physically re-employable, his forced admission into a rehabilitation program provided under NRS 616C.530 would be mandated only because of his illegal status. This, as also noted by the majority, would be manifestly unfair. Certainly, what is illegal for a documented worker must be illegal for an undocumented worker. I therefore further agree that there is no impediment under the state or federal constitutions to his exclusion from a program under this alternative.
As noted below, however, the analysis of eligibility under state law changes if Mr. Tarango is not, in any event, able to pursue re-employment or substitute employment.
Preemption
The majority concludes that IRCA preempts the Nevada Industrial Insurance Act (“NIIA”) merely because it may have an effect on aliens working in the State of Nevada. On the other hand, the majority observes that there is no indication that the SIIS is prohibited from or would be punished under IRCA for providing certain rehabilitation services to Mr. Tarango. While I agree with the second position taken by the majority, I disagree with the first and conclude that IRCA does not preempt the provisions of the NIIA that provide rehabilitation services, short of job placement, to an undocumented alien. Without preemption, there is no federal prohibition against Mr. Tarango’s participation in a program that does not violate IRCA.
It is true that, under the Supremacy Clause2 of the United States Constitution, any state law in conflict with federal law must yield to the federal mandate. However, the United States Supreme Court has always exercised restraint and caution in determining whether a particular state law conflicts with federal law.3 Indeed, in Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co.,4 the Court stated that “[p]re-emption of state law by federal statute or regulation is not favored ‘in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistak-enly so ordained.’ ”
As discussed in De Canas v. Bica,5 the United States Supreme *459Court employs a three-part test to determine whether federal law must preempt state law. First, federal law preempts state law when a state purports to regulate an area exclusively reserved for the federal government.6 Second, federal law preempts state law if Congress has sought to occupy the field: that is, when Congress clearly intends to oust state authority to regulate that type of conduct, even if the state regulation is consistent with federal objectives.7 Third, federal law preempts state law if it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ”8 Failure on any one of these three tests results in federal preemption.
There is no real dispute in this case that the NIIA rehabilitation scheme satisfies the first two tests. Nevada clearly has the authority to protect its workers (lawfully and unlawfully employed) under a no-fault workers’ compensation system. This notwithstanding, all three tests are discussed below.
Under the first De Canas test, we must determine whether the state enactment that in some way impacts aliens is a regulation of immigration. Because the power to regulate immigration is exclusively a federal power, state statutes that regulate immigration are constitutionally proscribed.9 In this instance, the NIIA provides benefits for all employees, undocumented or otherwise.10 However, the De Canas Court emphasized that a state enactment does not automatically equate to a regulation of immigration, and ipso facto preemption of state law, because it deals in some manner with aliens.11 The Supreme Court noted that state statutes should not be branded as regulatory merely because the legislation has “some purely speculative and indirect impact on immigration.”12 The NIIA rehabilitation scheme is intended to provide certain benefits to all Nevada workers; it does not, in any respect, purport to regulate immigration.
Likewise, under the second De Canas test, it cannot be said that there is any manifestation of Congress’s intent to oust state authority to rehabilitate undocumented injured workers.13 Prior to *460IRCA’s enactment, it was long established that undocumented alien workers were able to collect workers’ compensation benefits.14 Had Congress intended to preclude states from continuing to provide these benefits, it could have explicitly done so under IRCA.
In my view, only the third De Canas test, i.e., whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, provides an arguable basis for federal preemption. However, I do not believe that the rehabilitation of undocumented workers under the NIIA interferes with federal legislative objectives.
Congress enacted IRCA in an effort to reduce the illegal immigration of alien workers to the United States.15 Recognizing that the most effective method of discouraging illegal immigration is to make undocumented workers less attractive employees, Congress criminalized the employer’s side of the employment relationship. This policy is underscored by the legislative history of the federal act:
Employment is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in violation of their status. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status in search of employment.16
Thus, IRCA makes it unlawful “to [knowingly] hire, or to recruit or refer for a fee,” any unauthorized alien for employment in the United States.17 IRCA does not, however, “reduce the legal protections and remedies for undocumented workers under other laws.”18 Indeed, to do so would “exacerbate the appeal of illegal *461workers to unscrupulous employers,” and directly contravene Congress’s intent in enacting IRCA.19 I wish to note in this connection that there is no evidence of any untoward behavior by this employer. This, however, does not change the policy behind preserving certain protections afforded to undocumented workers.
In contrast, beyond the placement of a worker in new or substitute employment, the NIIA contains no requirement affecting alien workers that would constitute illegal misconduct under IRCA. Rather, the NIIA primarily alters a worker’s ability to sue his employer in tort in exchange for “no-fault” employment benefits. Under NIIA, “[t]he employee forfeits his common-law right to sue his employer for negligence, while the employer gives up most common-law defenses.”20 The puipose of this statutory construct is to efficiently provide compensation to workers for injuries suffered as the result of their employment.21 Absent a workers’ compensation scheme, an undocumented worker, like a documented one, could sue his employer in a common law tort action. His immigration status would be no bar to such a suit.22 By simply replacing the employee’s negligence cause of action with the workers’ compensation scheme, Nevada does not encourage illegal immigration; instead, it merely provides a vehicle to compensate for workplace injuries. Thus, the NIIA does not stand as an obstacle to the accomplishment and execution of the purposes and objectives of IRCA.23
The NILA provides the following options to the workers’ compensation insurer: (1) return the employee to his original position; (2) return the employee to the original position in a modified role; (3) return the employee to employment with another employer in order to make use of his existing skills; (4) provide formal retraining while he works in another profession; and (5) provide formal training or education for a new vocational endeavor.24
I agree that substitute employment under the NIIA rehabilitation scheme would violate IRCA. However, as the majority seemingly agrees, the SIIS need not violate IRCA under the facts of this case. Because Mr. Tarango’s prior job requires more vigorous work than his permanent disability permits, he is eligible for *462vocational retraining under Nevada law if he is otherwise not medically eligible for re-employment or substitute employment.25 Vocational retraining does not entail job placement or referral of an undocumented worker for a fee. Providing a pure rehabilitation program to someone injured while in the service of a domestic employer does not per se violate the act and, certainly, the Immigration and Naturalization Service can deport him at any time.26
Thus, I disagree that Mr. Tarango is absolutely barred from eligibility. If he is medically ineligible for re-employment because of the nature of his work-related injuries, he should be eligible to participate in a legal rehabilitation program if the department of immigration would let him do so. Again, however, if found to be re-employable on a substitute basis or otherwise, Mr. Tarango is precluded from participation in any rehabilitation program legally unavailable to legal workers.
I would therefore hold that IRCA does not preempt the NIIA. If IRCA does not preempt the NIIA in this instance, there is no federal impediment preventing the SIIS from awarding rehabilitation benefits short of placement in the workforce. Hence, I would reverse and remand this matter with instructions for the district court to order the SIIS to reconsider Mr. Tarango’s request for vocational retraining.27
I also would not reach the issue of whether granting vocational retraining benefits to Mr. Tarango violates some unknown, documented worker’s equal protection rights because that hypothetical worker is not a represented party before this court in this matter.28
NRS 616C.530.
U.S. Const, art. VI, cl. 2.
See, e.g., Chicago & N. W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); De Canas v. Bica, 424 U.S. 351 (1976); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963).
450 U.S. at 317 (quoting Florida Lime Growers, 373 U.S. at 142).
424 U.S. 351 (1976).
Id. at 354-56.
Id. at 356-63.
Id. at 363 (quoting Florida Lime Growers, 373 U.S. at 141; Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
Id. at 354-56.
NRS 616A.105.
De Canas, 424 U.S. at 355.
Id.
See Dowling v. Slotnik, 712 A.2d 396 (Conn. 1998) (holding that IRCA does not diminish state’s authority to award workers’ compensation benefits to undocumented alien workers).
Michelle Mcaloon, Comment, Working But Not “Available to Work’’: Reconciling the Rights of Undocumented Laborers With the Immigration Reform and Control Act of 1986, 15 Chicano-Latino L. Rev. 92, 109 (1994); John W. Sagaser, Casenote, Rights Without a Remedy — Illegal Aliens Under the National Labor Relations Act: Sure-Tan, Inc. and Surak Leather Company v. NLRB, 27 B.C. L. Rev. 407, 445 (1986).
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 481 (1991); see also Elizabeth M. Dunne, Comment, The Embarrassing Secret of Immigration Policy: Understanding Why Congress Should Enact an Enforcement Statute for Undocumented Workers, 49 Emory L.J. 623, 626 (2000) (citing Pub. L. No. 99-603, 100 Stat. 3359; Philip Shenon, “Startling’’ Surge is Reported in Illegal Aliens from Mexico, N.Y. Times, Feb. 21, 1986, at Al).
H.R. Rep. No. 99-682(1), at 46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650.
8 U.S.C. § 1324a (1986).
Nat’l Labor Relations Bd. v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 56 (2d Cir. 1997).
Id.
Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 631, 729 P.2d 1355, 1356 (1986).
Id.
See Peterson v. Neme, 281 S.E.2d 869, 870-71 (Va. 1981) (recognizing that in a majority of jurisdictions, unlawful aliens have standing to sue).
See Dowling, 712 A.2d 396 (holding that IRCA does not prevent a state from awarding workers’ compensation benefits to an undocumented alien, injured in the course of her employment).
NRS 616C.530.
Id.
Additionally, IRCA criminalizes the transport of an alien into the United States through non-designated ports of entry, illegal transport of aliens within the United States, the knowing or reckless harboring of undocumented aliens, and the knowing or reckless encouragement of undocumented aliens to enter or reside in the United States. 8 U.S.C. § 1324(a) (1994). Placing undocumented workers in a rehabilitation program does not, in and of itself, implicate any of these prohibitions. The worker may still be deported at any time — the program does nothing to prevent the Immigration and Naturalization Service from acquitting its responsibilities.
The majority suggests that Mr. Tarango is not incapacitated or permanently disabled. Although he was cleared for light duty work at the administrative level, the record is unclear as to whether he is able to pursue any of the employment options under NRS 616C.530. This is underscored by the fact that the employer in this case has no position available that would accommodate Mr. Tarango’s physical infirmities. This, of course, eliminates the first two employment options under NRS 616C.530. Thus, I would remand this matter as suggested.
See, e.g., Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd., 237 F.3d 639, 650 (D.C. Cir. 2001) (holding that the respondents do not have standing to assert the equal protection rights of third parties).