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Arizona Employer Sanctions Law Takes Effect

Arizona Employer Sanctions Law Takes Effect

A new Arizona state law targeting businesses that "intentionally" or "knowingly" employ unauthorized immigrants went into effect January 1 despite recent legal attempts to block it.

The challenge to the new law comes from a coalition of business groups. Judge Neil Vincent Wake, a federal judge in Phoenix, has scheduled a hearing on January 16, 2008, for a preliminary injunction, pending a possible trial on the constitutionality of the new law. A ruling is expected by the end of the month.

Under the Legal Arizona Workers Act, employers with unauthorized workers could have their business licenses suspended for up to 10 days and be put on probation. A second offense could lead to a revocation of the license. The county attorney's offices across Arizona's 15 counties will enforce the law.

The new law also requires that all employers in Arizona check the employment eligibility of those hired after January 1 through E-Verify. Formerly called the Basic Pilot Program, E-Verify is an online federal database through which employers can check whether an individual is authorized to work in the United States.

Although federal law says participation in E-verify is mostly voluntary, the new Arizona law makes participation mandatory for employers who hire new employees after January 1. Of the approximately 150,000 employers in Arizona, only about 9,000 employers currently have signed up for E-Verify.

Opponents of the new law have argued that sanctioning employers of unauthorized workers is an exclusive federal responsibility, thus preempting states from enacting their own employer sanctions laws.

Supporters of the law contend that, in enacting the sanctions law in 1986 (as part of the Immigration Reform and Control Act), Congress created an express exception allowing states to impose sanctions through "licensing and similar laws." As his recent ruling suggests, Judge Wake seems to agree with this argument.

Whatever the outcome of the legal challenge, newspaper reports suggest the law is already having an impact. Some employers have begun to lay off workers, some are abandoning plans to expand their businesses in Arizona, and some are shifting their operations to neighboring states, even to Mexico.

Arizona Governor Janet Napolitano reluctantly signed the law last July amid strong speculation that a more punitive version would be enacted though a popular referendum. In expressing her reservations, Napolitano called the law a "business death penalty."

In November 2006, voters in Arizona overwhelmingly supported three propositions to counter illegal immigration and a proposition to make English the state's official language.

The Arizona employer sanctions law represents a recent and growing trend among states and localities to take a more aggressive role in regulating immigrants. The absence of federal legislation on immigration has contributed to this trend.

Colorado, Georgia, and Oklahoma also have passed laws that prohibit employers and/or contractors who provide services to the state from knowingly employing an unauthorized worker. In these three states, laws require state contactors and subcontractors to enroll in E-Verify as a condition of receiving state contracts.

On January 7, Minnesota Governor Tim Pawlenty issued an executive order requiring state agencies and contactors doing business with the state to screen all new hires through E-Verify.

  • Read Judge Wake's decision here.
  • Governor Napolitano's July 2007 statement following the signing of the employment sanctions law is available here.

Congress Delays Western Hemisphere Travel Initiative Passport Provision

Congress voted in December to delay until June 2009 a requirement that all travelers entering the United States by land or sea show a government-issued passport. The rule, part of the Western Hemisphere Travel Initiative (WHTI), was supposed to take effect January 1, 2008. Congress delayed implementation of the rule out of concern that it would cause major delays and inconveniences for border-state residents who regularly cross the border.

Currently, citizens of the United States, Bermuda, and Canada entering the United States by land or sea are not required to show a passport, so long as they present a valid government-issued photo ID, such as a driver's license. All air travelers to the United States must present passports to enter the country.

The Department of Homeland Security created WHTI in response to the Intelligence Reform and Terrorism Prevention Act of 2004, which required DHS to implement a plan requiring that all travelers entering the United States show a passport or other document denoting identity and citizenship. The act noted that existing travel procedures allowing many travelers to enter into the United States with minimal documentation posed a national security threat.

Another WHTI requirement will go into effect as planned. Beginning January 31, U.S. Customs and Border Protection (CBP) agents will no longer accept oral declarations of citizenship from those crossing land and sea borders into the United States. Travelers from the United States, Bermuda, and Canada age 19 and older will have to show proof of citizenship, such as a birth certificate.

  • Read more about the Western Hemisphere Travel Initiative here.
  • Read the DHS fact sheet on the Western Hemisphere Travel Initiative and more on new travel requirements here.
  • Read the Intelligence Reform and Terrorism Prevention Act of 2004 here.

Policy Beat in Brief

H-2B Cap Reached. U.S. Citizenship and Immigration Services (USCIS) will reject H-2B employment petitions with start dates before October 1, 2008, filed after January 3. USCIS has received enough petitions to meet the statutorily mandated cap of 33,000 visas for the second half of fiscal year 2008 (April-September 2008). The agency will still process petitions from employers wishing to extend the period of employment for current H-2B workers, as extension petitions are not subject to the cap. H-2B visas are nonimmigrant visas that grant temporary admission to foreign workers who perform low-skilled nonagricultural labor or services.

  • Read the USCIS press release announcing that the cap has been reached here.
  • Read more about the H-2B visa here.

Julie Myers Confirmation. The Senate confirmed Julie Myers as Assistant Secretary of Homeland Security for Immigration and Customs Enforcement (ICE), two years after President George W. Bush first appointed her to the position. Myers's confirmation was delayed by critics who claimed she lacked the experience needed to head ICE, and that she was not sufficiently committed to targeting employers of unauthorized immigrants. As head of ICE, Myers leads the largest investigative component of the Department of Homeland Security (DHS).

  • Read the press release announcing Myers's confirmation here.

State and Local Policy in Brief

Enhanced Driver's Licenses in Washington State. Washington State residents who are U.S. citizens can apply for a State of Washington Enhanced Driver's License (EDL) beginning January 22. Washington is the first state in the country to issue EDLs, which comply with Western Hemisphere Travel Initiative requirements and serve as an alternative to a passport for crossing land and sea borders with Canada, Mexico, Bermuda, and Caribbean countries. DHS has signed agreements with several other border states to institute EDL programs. The Washington State EDL will cost roughly $15 more than a standard driver's license.

  • Read more about Enhanced Drivers Licenses here.
  • Read more about the Washington State Enhanced Drivers License ID Cards here.

Reconsideration of Driver's Licenses for Unauthorized. Michigan Attorney General Mike Cox has reversed the state's previous policy of allowing unauthorized immigrants to obtain driver's licenses, issuing an opinion on December 27, 2007, stating that unauthorized immigrants are ineligible for Michigan driver's licenses. Several other states are considering similar changes. In Rhode Island, the proposed "Rhode Island Tax Payer and Citizens Protection Act" would prohibit unauthorized immigrants from obtaining Rhode Island driver's licenses.

  • Read Michigan Attorney General Mike Cox's opinion here.

E-Verify Delayed in Illinois. The State of Illinois is delaying implementation of a law that prohibits Illinois employers from using the federal E-Verify system until the federal government can show that E-Verify resolves 99 percent of tentative nonconfirmations within three days. Employers using E-Verify receive tentative nonconfirmations when an employee's work authorization status cannot be determined. The implementation delay is in response to a lawsuit the federal government filed against the state of Illinois in September, requesting that the court declare the Illinois law invalid. The law was to take effect January 1, 2008.

  • Read the Illinois law concerning E-Verify here.
  • Read the complaint filed by the federal government against Illinois here.