United States: Law Update: Immigration And Nationality

Dealing With Immigration Issues: What Does The Future Hold For An Employer?

No one in the United States has been able to avoid the issue of immigration during the past year, most certainly not the U.S. employer. It has been a tumultuous year. The Department of Homeland Security has engaged in a series of high-profile raids and arrests at business premises. States and local governments have passed laws and regulations with the express purpose of creating greater liability for employers who might intentionally or even inadvertently hire undocumented aliens. Initiatives to institute immigration reform in Congress ended in failure and disarray. The legal immigration system is in disrepair as basic employment visas such as the H-1B for professional workers are generally unavailable and quotas for legal immigration based upon employment are backlogged, then become current, and then become backlogged again!

This, while the global market is such that almost no employer can avoid the reality that non-U.S. workers are a significant part of the workforce and U.S. businesses cannot ignore that pool of talent.

So what does an employer do?

In this brave new world, an employer must understand that he is an enforcement agent on behalf of the U.S. government, and perhaps of the state government as well. There will be more obligations imposed on employers beyond those relating to I-9 processing, Social Security Administration no-match letters, proper supervision of independent contractors, and state filing and recording requirements. Congress and the states will not remain silent in the coming year when it comes to enforcement and burdening the employer.

Hiring of non-U.S. citizens and residents will remain difficult until legislation is introduced and passed to alleviate the shortage of non-immigrant and immigrant visas. Employers will have to work closely with counsel to devise appropriate strategies to make use of the array of talent, both outside and within the U.S.

We, at the Immigration Law Practice Group at Proskauer Rose LLP, will continue to carefully monitor developments nationally, statewide and locally and report to you. I, as head of the Practice Group, will continue to reach out to you with my observations and solicit from you your concerns and your input.

David Grunblatt

IMMIGRATION ENFORCEMENT: STATE AND LOCAL LAW SUMMARY

In 2007, states enact and introduce an unprecedented number of immigration bills, treading dangerously on territory reserved exclusively for the federal government.

Introduction

Growing frustrated with Congress’ inability to pass comprehensive immigration reform and what is perceived by some to be a growing illegal immigration crisis, an unprecedented number of bills have been introduced by state lawmakers around the country. According to an August report by the National Conference of State Legislatures, in 2007 the 50 states had introduced 1,404 pieces of immigration-related legislation in their home legislatures – roughly two and a half times more bills in 2007 than in 2006. In the first half of the year, 170 of these bills became law in 41 states – more than double the total number of 2006 enactments (84). This record number of state immigration laws and bills cover a wide variety of issues affecting both legal and undocumented immigrants including employment, health care, law enforcement, public benefits, education, and driver license identification requirements.

Employment-Related Immigration Laws Passed By States

A primary area of focus for states has been employment-related immigration bills. While the federal government already prohibits the hiring of undocumented workers under the federal Immigration Reform and Control Act of 1986 ("IRCA"), many state legislative efforts attempted to impose and enforce tougher employer sanctions on employers who hire unauthorized workers.

Over the course of this year, 19 states successfully enacted 26 employment-related immigration laws – Arkansas, Arizona, Colorado, Georgia, Hawaii, Kansas, Kentucky, Maine, Minnesota, Mississippi, Montana, New Mexico, Nevada, Oregon, Tennessee, Texas, Utah, Virginia, and West Virginia.

19 States Enact Employment-Related Immigration Laws

State immigration laws have generally resulted in employers bearing an increased burden of verifying work eligibility and facing additional sanctions. State immigration laws also have exposed employers to new and intrusive investigative procedures by state agencies, in addition to authorized federal agencies. Recurring features of this type of legislation include:

  • imposing state fines on employers who hire unauthorized workers;
  • prohibiting state agencies from employing or contracting with businesses that employ unauthorized workers;
  • prohibiting the provision of government contracts to employers who hire unauthorized workers;
  • eliminating unemployment insurance or worker’s compensation benefits for undocumented workers;
  • revoking business or operating licenses of employers who hire unauthorized workers; and
  • allowing state-administered agencies to enforce immigration laws.

Not all of the state bills aim to punish employers who hire unauthorized employees. The Illinois legislature passed a bill that prohibits businesses from using the federal government’s "Employment Eligibility Verification Program" ("EEVP") until its reliability and accuracy can be improved. Illinois Governor Blagojevich is still considering whether to sign the bill.

A Closer Look at the Strictest Law in the Nation: Is This Where States Are Heading?

In July 2007, Arizona’s Governor Janet Napolitano signed and passed arguably the toughest law against employers of undocumented workers in the nation, "Legal Arizona Workers Act." This law, effective January 1, 2008, has two key features: 1) It provides business license penalties for employers who knowingly or intentionally hire undocumented workers; and 2) it requires all employers to use the federal EEVP to determine an employee’s legal status.

Under the Arizona law, the State Attorney General or County Attorney must investigate complaints regarding employers hiring undocumented workers to determine whether an employer "knowingly" or "intentionally" hired the employee(s). With non-frivolous complaints, the Attorney General or County Attorney must then notify the U.S. Immigration and Customs Enforcement ("ICE") of its findings and proceed to bring a lawsuit to suspend or revoke the employer’s business license. Unlike federal immigration law, the Arizona law does not impose monetary penalties against employers.

A first "knowing" violation results in requiring the employer: 1) To terminate the employment of all undocumented employees; 2) to file an affidavit stating that it has terminated all unauthorized workers and that it will continue to comply with the statute; and 3) to file quarterly reports with the County Attorney on all new hires while on a three-year probationary period. The employer’s business license can be suspended for up to 10 business days. A first "intentional" violation results in the same penalties, except that the employer’s license must be suspended for at least 10 days and the probationary period is five years.

Businesses face the possibility of losing their business licenses permanently if they are found to have violated the statute during the three-or five-year probationary period. Since almost all of Arizona’s businesses are required to have a valid license, under this new state law, all Arizona businesses face the temporary or permanent possibility of losing their ability to operate if they are found to have "knowingly" or "intentionally" hired undocumented workers.

The Arizona law does, however, provide for some employer defenses: 1) If an employer can demonstrate that it utilized the EEVP program, there is a rebuttable presumption that it did not hire an undocumented worker "knowingly" or "intentionally;" and 2) If an employer proves that it has complied in good faith with the federal I-9 requirements, the employer can establish an affirmative, complete defense to the charge that it violated the Arizona statute.

The U.S. Chamber of Commerce, along with a number of Arizona business groups have brought a lawsuit against the State in the hopes that this sweeping piece of legislation will never take effect. The plaintiffs argue that the Arizona law is unconstitutional and preempted by federal law.

Are These State Laws Preempted By Federal Immigration Law?

Most, if not all, of these state and local pieces of legislation are vulnerable to federal preemption and constitutional challenges. The starting points in a preemption discussion regarding state immigration laws are that: 1) Under the Constitution, Congress has the power to preempt state law; and 2) It is has been widely accepted that the power to regulate immigration is exclusively vested in the federal government.

It has been argued with regard to immigration legislation in general that the breadth of the Immigration Nationality Act ("INA") demonstrates that Congress intended to fully occupy the field of immigration regulation, thereby preempting all state immigration laws. Moreover, in the specific case of employer sanctions for employment of unauthorized workers, the Immigration and Nationality Act (INA) § 274A(h)(2) explicitly states that its provisions "preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ or recruit, or refer for a fee for employment, unauthorized aliens." Under this language and the federal preemption doctrine, even if a state law mirrors federal IRCA requirements, the state law is expressly preempted.

It is important to emphasize that according to this INA provision, states may not be preempted from denying licenses or permits to businesses that employ illegal immigrants. It is not clear whether this exemption covers state laws that prohibit the granting of contracts, loans, or other economic incentives to employers.

We received the first glimpse of how courts will interpret the constitutionality of state immigration laws in July 2007, when a federal district court overturned Hazelton, Pennsylvania’s local immigrationrelated ordinance. Under Hazelton’s "Illegal Immigration Relief Act," businesses and landlords were required to confirm that their customers and tenants were legal residents before providing them with services. Over the past two years, more than 40 other local and state governments have passed similar ordinances and legislation aimed at making it very difficult for undocumented individuals to reside in certain communities. In the landmark decision regarding Hazelton’s ordinance, the federal district court found that the ordinance was unconstitutional because it did not afford illegal immigrants with due process protections, and it undermined the federal government’s exclusive power to regulate immigration.

Moving Forward

As the landscape of immigration laws affecting employers is changing on both the federal and state level, it is critical that employers become familiar with the applicable laws in their states. We will keep you updated on how the Arizona lawsuit unfolds, as this will provide some critical indication on how courts will handle preemption challenges to state immigration laws affecting employers. If you would like further information on how your business or organization may be particularly impacted by the provisions of state immigration laws, please contact our Immigration Law Practice Group.

VERMONT AND ARIZONA TO ISSUE DRIVER’S LICENSES THAT COMPLY WITH WHTI

On August 20th, DHS announced an agreement with the State of Vermont to work together to produce a driver’s license document that comports with the security and tamper-resistant requirements of the Western Hemisphere Travel Initiative ("WHTI"). A similar agreement with the State of Arizona was announced on August 24th. Beginning on January 31, 2008, U.S. and Canadian citizens traveling in the Western Hemisphere will be required to present either a WHTI-compliant document, or a government-issued photo identification, such as a driver’s license, coupled with proof of citizenship, such as a birth certificate, for admission to the U.S.

OCTOBER 2007 EMPLOYMENT-BASED IMMIGRANT VISA CUTOFF DATES PROJECTED

On August 20th, the Department of State ("DOS") offered to the American Immigration Lawyers Association ("AILA") informal projections on employment-based visa availability for the October 2007 Visa Bulletin. DOS intimated that October availability in the First and Second Preference categories for all countries should closely match that seen in the September 2007 Bulletin. In the Third Preference categories, the cut off dates are likely to be similar to those found in the January 2007 Visa Bulletin. For the Other Worker category, the cut off date is likely to be October 1, 2001. The DOS was not able to project Fourth Preference, but did suggest that the Employment-Based Fifth Preference category for Investors would be current for all countries.

DOS POSTS DIVERSITY VISA 2009 ONLINE ENTRY DATES

The DOS has posted the Diversity Visa 2009 online entry dates on its website. Online entry begins at noon EDT on Wednesday, October 3, 2007, and ends at noon EST Sunday, December 2, 2007. The Congressionally mandated Diversity Immigrant Visa Program makes available 50,000 immigrant visas annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the U.S.

www.proskauer.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions