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Federal Inactivity Continues to Spark State Immigration Action

A federal judge blocked parts of Arizona’s new immigration law on Wednesday, the day before the rest of the measure went into effect. But legal challenges are already flying and many are waiting to see what happens next.

Last year, a record number of immigration-related laws were considered and passed in the 50 states. Over 222 laws were enacted and 138 resolutions were adopted. Human trafficking laws alone tripled from 2008. In the area of employment-related immigration laws, 21 laws were enacted in the following 12 states: California, Georgia, Hawaii, Illinois, Maine, Minnesota, Montana, New Jersey, Nevada, Tennessee, Utah, and Virginia.

These laws were related to everything from hiring unauthorized workers to employment eligibility verification requirements, unemployment benefits and workers’ compensation.

Hawaii authorized license revocation for contractors who employ an unauthorized worker on a public works project.

Illinois urged employers to check the state’s Department of Labor website for information on E-Verify accuracy and prohibits state or local government from requiring employers to use E-Verify.

Maine added migrant and seasonal farm workers to the law providing protections for forestry workers.

Tennessee created a Class A misdemeanor offense for a person to knowingly provide false identification for the purposes of obtaining or maintaining employment.

Virginia limited liability companies may be canceled for actions of their members or managers constituting a pattern or practice of employing unauthorized aliens.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including immigration

2010 brings even more legislation
This year, the push to pass immigration laws at the state level has continued in the face of stalled federal immigration reform. State legislatures have again taken on immigration issues, this time in even greater numbers.

In the first quarter of this year, state legislators in 45 states introduced 1,180 bills and resolutions relating to immigrants and refugees. Of these, 107 bills became law and 87 resolutions were adopted. About 173 employment-related immigration bills were filed in 36 states. These bills addressed issues such as employment verification including E-Verify, immigrant eligibility for unemployment and workers’ compensation, and foreign worker visas.

Audio Conference: New E-Verify and ICE Enforcement Challenges: Best Practices from Immigration Insiders

Legislation passed thus far
New bills have become law in at least five states, including Virginia, West Virginia, Utah, Iowa, and Washington. Briefly, the new laws do the following:

Virginia: Originally filed to apply to all employers both public and private, the version that became law only applies to government agencies, requiring them to enroll in the E-Verify system and to use it to verify the status of all new employees.

West Virginia: Creates misdemeanor penalties for employers who willfully and knowingly fail to keep records on employee legal status or who knowingly violate the law by employing, hiring, recruiting, or referring an unauthorized worker. Also provides for the revocation or suspension of an employer’s license for failure to comply with employment status verification requirements.

Utah: Creates the “Private Employer Verification Act.” The bill applies to private employers with 15 or more employees as of July 1, 2010. On or after that date, private employers may not hire new employees unless they are registered with and use the E-Verify system to verify the federal legal working status of new employees. The bill also provides liability protections for private employers in civil actions against the employer for unlawful hiring of an unauthorized alien. Employers will not be held liable if they comply with the law’s requirements and if the verification system indicated that the employee’s federal legal status allowed the employee to be hired.

Iowa: Requires employers employing migrant laborers to obtain and keep on file a work permit for migrant laborers prior to their employment.

Washington: Removes the requirement for employers to provide disclosure statements to certain foreign workers where it can be shown that the worker received the informational pamphlet created and required under federal law. The bill creates the presumption that the worker received the federal pamphlet if the worker holds one of a specified list of visas. The bill also creates a civil cause of action for foreign workers alleging violations of the law’s requirements by an employer.

Arizona’s controversy

Although immigration can be a highly emotional issue, typically proposed state immigration laws, and even those that are enacted, don’t get terribly widespread attention. That was before Arizona passed its controversial “Support Our Law Enforcement and Safe Neighborhoods Act.”

Even if you don’t recognize the law by its title, you certainly have heard or read about it. Signed into law on April 23, SB 1070 immediately drew national attention and caused a furor on both sides of the issue.

The bill’s trespassing provisions, which extend criminal trespassing laws to illegal aliens, are the first of their kind in the nation. The toughest immigration law in the country, it was quickly amended in the wake of the huge outcry that resulted on its passage.

On the last day of the legislative session, the amendatory bill HB 2162 was passed and later signed into law. It is set to take effect on July 1 of this year. One of the primary purposes of the amendatory bill is to address the original bill’s racial profiling concerns yet, even with the amendments, the law raises serious constitutional concerns and raises problems with implementation.

Generally the Arizona law contains the following provisions:

  • Requires law enforcement to reasonably attempt to determine immigration status where reasonable suspicion of unlawful presence exists;
  • Allows state residents to sue state and local agencies for noncompliance;
  • Creates a state violation for failure to carry an alien registration document;
  • Establishes crimes and penalties for trespassing by illegal aliens, stopping to hire or soliciting work under specified circumstances, and transporting, harboring or concealing unlawful aliens.

On Wednesday, July 28, a federal judge blocked many of the above listed parts of the law from going into effect even though the overall law still went into effect on Thursday, July 29.

When the new Act passed, Arizona already had a two-year-old employer sanctions law requiring employers to verify eligibility of employees hired after December 31, 2007, and providing for the revocation of an employer’s license for knowingly hiring an illegal worker. However, the new bill requires employers to retain records of verification for at least three years or the duration of the employment, whichever is longer.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including immigration

Legal challenges of the Arizona laws
Arizona’s older employer sanctions law is already being challenged on constitutional grounds and is before the U.S. Supreme Court. The Obama administration has asked the Court to take the case, arguing that federal immigration law expressly preempts state laws imposing sanctions on employers for knowingly hiring illegal immigrants. The lower courts are in conflict over whether the Arizona law and others like it are preempted.

In urging the Court to take the case, the acting U.S. solicitor general wrote that the Arizona law disrupts “a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country.”

The government also argued that immigration policies should be national and uniform and not a patchwork of different state and local laws. If the Supreme Court takes the case, it will likely be heard this fall, with a possible decision next spring. A decision on the law will have a direct impact on similar employer sanction laws in other states such as Colorado and Oklahoma, but addressing the preemption issue could also have a bearing on the newer Arizona law.

Reaction to Arizona’s new law has been swift. Civil rights groups, labor organizations, Hispanic organizations, and a number of local governments have vowed to boycott Arizona in a variety of ways. The mayors of St. Paul and San Francisco have banned business travel by city employees to Arizona in protest over the new law. The Denver public school system has also passed such a ban and several other cities and counties including Los Angeles; San Diego, Austin, and El Paso County, Texas; and Cook County, Illinois are considering doing so as well. Bloomington, Indiana passed a ban on city travel and also on new contracts with any business based in Arizona. Seattle, Sacramento, Columbus, and Boston have all also adopted boycotts.

Other states’ activities
Several states were ready to jump on the Arizona bandwagon but ran out of time. The legislative leadership in Oklahoma chose to table proposed legislation that would include some of the Arizona provisions because legal challenges to the Arizona law would not be resolved until after the Oklahoma legislature adjourns this year.

In South Carolina a legislative committee met to compare its immigration law with Arizona’s to see if changes should be made. The committee ran out of time to consider legislation due to the session’s adjournment. Legislators in these states and others such as Utah, Ohio, Texas, Mississippi, Maryland, Minnesota, and Colorado have vowed to bring the legislation up in the next legislative session.

Bottom line
It is likely that, until the federal government acts to pass sweeping national immigration legislation, states will continue to take matters into their own hands to address local immigration issues. Whether Arizona was trying to force Congress’s hand on immigration or not, it definitely raised the attention level on this issue to a new high.

A recent meeting between President Obama and Governor Brewer of Arizona made this clear. The President has spoken out against the Arizona law on several levels, but particularly as complicating and interfering with the federal government’s ability to set and enforce immigration policy. With battle lines drawn and strong opinions and emotions on all sides, it will be critical for employers to stay on top of this issue over the coming months.

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