Global Mobility & Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Mobility & Immigration Counsel

By Darren Nadel and Jordan Cornett

The Colorado Division of Labor has recently stepped up its enforcement of Colorado’s Employment Verification Law. The Employment Verification Law, codified at Colorado Revised Statutes section 8-2-122, became effective on January 1, 2007, and applies to all public and private employers who transact business in Colorado. In general, the Employment Verification Law requires employers to meet the following two requirements:

Requirement #1: Within 20 days after hiring a new employee, the employer must complete an affirmation affirming the following: (1) the employer examined the legal work status of the employee; (2) the employer retained copies of the documents the employee presented for completion of the employee’s federal Form I-9 (such as a driver’s license and Social Security card); (3) the employer did not alter or falsify the employee’s identification documents; and (4) the employer did not knowingly hire an undocumented worker.

The employer must retain a paper or electronic copy of the affirmation for the term of employment of each employee. A sample affirmation that the Colorado Division of Labor requires for compliance is available here.

Requirement #2: The employer must create and retain a paper or electronic copy of the documents that the employee presents for completion of the employee’s federal Form I-9 (such as a driver’s license and Social Security card).

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By Michelle Valerio

According to a study conducted by the National Conference of State Legislatures (NCSL), there was a 20% decrease in enacted immigration laws and resolutions in the first half of 2012, as compared to the first half of 2011. During the first half of 2012, 41 states enacted 114 bills and 92 resolutions relating to immigration; in contrast, there were 257 laws and resolutions enacted in the first half of 2011. The main factor causing this decrease likely was the uncertainty prior to the U.S. Supreme Court’s long-awaited decision on the Arizona immigration laws. Now that the Court has clarified the extent to which states can regulate immigration issues, the stage is being set for immigration reform in 2013. Washington State Representative Sharon Tomiko Santos, Co-Chair of the NCSL Immigration and the States Task Force, commented: “Whoever is elected president will need to work with both parties in Congress and address this issue. The can has been kicked down the road for too long, and states have suffered as a result. Come January, action at the federal level needs to happen.”

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Reproduced with permission from Law360. Copyright © Portfolio Media, Inc.

By Ian Macdonald

On June 25, 2012, the U.S. Supreme Court issued a split decision regarding Arizona’s 2010 immigration law, Senate Bill (SB) 1070. The court made clear that the federal government sets immigration policy and states will not be allowed to preempt federal powers.

States may, however, continue to require businesses to register for and use E-Verify. Recent debate makes it clear that neither U.S. Congress nor states will be allowed to ignore immigration issues.

In its decision, the Supreme Court recognized the challenges that Arizona faces as a result of undocumented workers. The court made it clear, however, that Arizona could not preempt federal law. The court struck down Section 3 of the Arizona law, which made it a crime for an individual to fail to apply for and carry proper immigration documentation showing lawful status.

The court also struck down Section 5, which made it illegal for an undocumented individual to apply for and perform work, and Section 6, which authorized the warrantless arrest of individuals where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

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In a 5-3 decision, the Supreme Court struck down a significant part of the Arizona immigration law on the grounds that those provisions were preempted by federal law. In Arizona v. United States, the Court held that three of four contested provisions of the state law – Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) – are preempted by existing federal statutes. Among the invalidated sections was the provision making it a state crime for an unauthorized worker to apply for work or be employed in the state. Though the Court eviscerated this attempt by Arizona to mitigate the substantial deleterious effects of illegal immigration on the safety and well-being of its citizens, Justice Anthony Kennedy, writing for the majority, made it clear that Arizona’s concerns are well-founded and that Congress has both substantial power and substantial responsibility to address Arizona’s concerns and those of its sister states. To learn more about the decision and its potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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Alabama gained notoriety in June when Governor Robert Bentley signed into law HB 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. HB 56 quickly gained a reputation as the most aggressive in a long line of state immigration legislation and attracted interest (and ire) from the federal government, immigrant rights groups, and others. A recent federal court decision has halted implementation of certain provisions of the Act, but the central requirement that employers use E-Verify remains intact and on schedule. To learn more about the decision, the E-Verify requirements, and their implications for employers, please continue reading Littler's ASAP, Despite Legal Challenge, Effective Date Approaches for Key Provisions of Alabama Immigration Legislation, by Jorge Lopez and Patrick Simpson.

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The National Conference of State Legislatures (NCSL) recently announced the results of its report on immigration-related laws and resolutions introduced by state legislatures in 2011. Employment remained one of the top issues in immigration-related legislation, along with law enforcement and identification/driver’s licenses.

Although the number of introduced measures increased by 16% during the first half of 2011, compared to the same period in 2010, the number of enacted bills decreased by 18%.

As reported by the NCSL, the surge in immigration-related proposals at the state level started in 2006, when the number of bills introduced (570) and laws enacted (84) essentially doubled compared to 2005. The most dramatic increase in terms of legislation volume occurred in 2007: 1,562 measures were introduced, with 240 laws enacted and 50 resolutions adopted. Since 2007, the number of immigration-related measures has always been well above 1,000, with at least 200 laws enacted each year.

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By Kelly Reese

On September 28, 2011, the District Court for the Northern District of Alabama (Judge Sharon Blackburn) issued a ruling (pdf) on a motion for preliminary injunction in the lawsuit filed by the U.S. Department of Justice against the State of Alabama challenging its recently enacted immigration law, House Bill 56 (HB 56).

The court has granted a preliminary injunction enjoining the enforcement of two provisions of HB 56 which are of direct concern for employers. The first is Section 16, which prohibits employers from deducting as business expenses wages or compensation paid to an unauthorized alien and imposes a penalty of 10 times the claimed deduction. The second is Section 17, which creates a new cause of action making it a discriminatory practice for employers to knowingly fail to hire a job applicant or discharge an employee who is either a U.S. citizen or authorized alien while retaining or hiring an individual the employer knows, or reasonably should know, is an unauthorized alien. Employers violating this provision can be subject to a civil suit, and the prevailing party may recover compensatory damages and reasonable attorneys’ fees.

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On September 6, 2011, the California State Senate passed Assembly Bill 1236 (AB 1236), the Employment Acceleration Act of 2011, which now heads to Governor Jerry Brown. The Act
prohibits the state, counties, cities and special districts from mandating that employers use an electronic employment verification program (such as E-Verify), except when required by federal law or as a condition of receiving federal funds. The Act’s prohibition on mandating use of an electronic employment verification program specifically applies in the following circumstances:

• as a condition of receiving a California government contract;
• as a condition of applying for or maintaining a business license; or
• as a penalty for violating licensing or other similar laws.

The findings and declarations set forth in AB 1236 include, among others:

• E-Verify’s inaccuracies have prevented employers from hiring employees “in a timely manner;”
• had E-Verify been mandatory in 2010 it would have cost employers $2.7 billion; and
• the net societal cost of all federal contractors using E-Verify would be $10 billion per year, according to a U.S. Chamber of Commerce estimate.

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U.S. District Judge Sharon Blackburn has ruled (pdf) that a complaint challenging Alabama’s recently-enacted immigration law lacks specificity, and ordered the plaintiffs to amend the pleading. The complaint, filed by 36 immigration and civil rights organizations against 11 defendants, contains “380 paragraphs, including 144 paragraphs of facts and history,” and 9 counts–with each count incorporating all previous factual allegations. Labeled a “shotgun complaint” by Judge Blackburn, the plaintiffs were directed to clarify, by September 16, 2011, for each discrete claim:

• which plaintiff(s) asserts the claim;
• the defendant(s) against whom relief is sought; and
• all factual allegations that support the discrete claim.

The organizations’ lawsuit is one of three challenges to the law; the U.S. Department of Justice and a group of religious leaders also have filed suit. As discussed here previously, on August 29, 2011, Judge Blackburn temporarily enjoined enforcement of the law.

Photo credit: Christian Baig Photography

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By Kelly Reese

On August 29, 2011, U.S. District Judge Sharon Blackburn temporarily enjoined the enforcement of Alabama’s recently enacted immigration law, House Bill 56 (HB 56), which was due to take effect September 1. The injunction will remain in effect until the court enters its ruling on the preliminary injunction or until September 29, whichever comes first. Judge Blackburn’s Order (pdf) states that the court will rule on the merits of the pending Motions for Preliminary Injunction no later than September 28.

The U.S. Department of Justice (DOJ) filed the lawsuit in the U.S. District Court (Northern District of Alabama) against the State of Alabama, alleging that HB 56 is preempted by federal law. The DOJ asked the court to find HB 56 invalid, null and void; and sought a preliminary and permanent injunction prohibiting its enforcement.

Two similar lawsuits, also seeking preliminary and permanent injunctions prohibiting enforcement of HB 56, were filed by religious and public interest entities. Those two cases have been consolidated with the DOJ lawsuit.

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Alabama is now the most recent state to require all employers to enroll in and verify employment eligibility through E-Verify. This requirement goes into effect on April 1, 2012. The new law prohibits all Alabama employers, public and private, from knowingly employing unauthorized aliens. Additionally, the law prohibits state government entities from awarding contracts or providing grants or other incentives to employers that fail to enroll in and verify employment eligibility through E-Verify. This provision goes into effect on January 1, 2012. Violations of the law can result in significant penalties for employers. The new law also creates a state law cause of action for U.S. citizens and authorized aliens against employers that refuse to hire or that discharge them while knowingly or negligently employing unauthorized aliens. To learn more about the new law and its implications for employers, please continue reading Littler's ASAP Alabama Is Latest State to Enact E-Verify Requirement by Kelly Reese.

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The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

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Georgia Governor Nathan Deal has signed into law House Bill 87 (pdf), a sweeping, Arizona-style immigration enforcement bill that, among other provisions, requires employers to use E-Verify, the federal electronic employment authorization program. Provisions of the “Illegal Immigration Reform and Enforcement Act of 2011” affecting private employers amend the Georgia Code as follows:

• Private employers must register with and use E-Verify to confirm new hires’ legal work status under the following deadlines:
  • Employers with 500 or more employees must comply by January 1, 2012.
  • Employers with more than 100 but less than 500 employees must comply by July 1, 2012.
  • Employers with more than 10 but less than 100 employees must comply by July 1, 2013.
• Business licenses, occupational tax certifications, and other documents required to operate a business will not be issued until the employer submits an affidavit attesting that it utilizes E-Verify or is exempt from the requirement (because it employs fewer than 11 employees or otherwise does not fall within the statute’s requirements). The Georgia Attorney General’s Office will provide a form affidavit for this purpose.

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The Florida House of Representatives’ Economic Affairs Committee recently approved a bill, HB 7089, that would require all employers in the state to use E-Verify to authenticate newly hired employees’ legal work status. The bill does not require employers to verify current employees’ status.

The proposed law would prohibit an employer from “knowingly” employing an unauthorized alien, and violators would be subject to administrative investigation and possibly administrative and civil actions and penalties. Additionally, a business failing to use E-Verify would lose its business license until it registers to use E-Verify and provides the appropriate licensing agency an affidavit demonstrating such registration. Noncompliant government contractors would have their contracts rescinded and become ineligible for future public contracts.

As reported in The News-Press, the bill faces opposition on many fronts, including labor and business groups. Representatives of Florida’s agriculture and tourism industries contest E-Verify’s efficiency and contend that the bill would damage these industries. Additionally, immigrants staged a pray-in during the Economic Affairs Committee hearing. 

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By Neil M. Alexander and Michael J. Lehet

In our July 2010 ASAP Update, Littler discussed the federal district court decision temporarily enjoining enforcement of certain provisions of Arizona's controversial "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070"). On April 11, 2011, the Ninth Circuit Court of Appeals issued an opinion affirming the district court ruling.

Like the district court decision, the Ninth Circuit opinion does not impact those provisions of SB 1070 that amend the Legal Arizona Workers Act (LAWA). Consequently, LAWA will continue to provide an entrapment defense to employers charged with knowingly or intentionally hiring undocumented workers. LAWA will also continue to require that employers keep a record of each E-Verify verification. Furthermore, the Ninth Circuit opinion does not affect the language of SB 1070 making it a Class 1 Misdemeanor for occupants of a motor vehicle stopped on a street, roadway, or highway, to hire and pick up, or attempt to hire and pick up, passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.

The opinion is the second Ninth Circuit decision to weigh in on Arizona's recent immigration debate. As explained in our September 2008 ASAP, Ninth Circuit Court of Appeals Upholds Legal Arizona Workers Act, the court previously sided with the district court and ruled that LAWA was constitutional. That decision is currently on review before the U.S. Supreme Court. A ruling from the high court is expected within the next several months.

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On March 3, 2011, the Georgia House of Representatives passed, by a 113-54 vote, House Bill 87 (pdf), an immigration enforcement bill that, among other provisions, would require employers to use E-Verify to authenticate their new hires’ legal work status. The bill, known as the Illegal Immigration Reform and Enforcement Act of 2011, now moves to the Senate, where a committee endorsed a similar measure on March 2. As reported by the Atlanta Journal-Constitution, HB 87’s controversial provisions, such as authorizing state and local police to verify the immigration status of certain criminal suspects, prompted “hundreds” of demonstrators to gather outside the Georgia Capitol during the House debate to “denounce the measure as an ‘Arizona copycat law.’”

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Arizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

• making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
• requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
• requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

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As discussed here previously, legislators in many states have been introducing legislation mimicking Arizona’s controversial immigration legislation, SB 1070. In the past week, such legislation has progressed, albeit slightly, in South Carolina, but has been taken off the table in Colorado.

In South Carolina, The Sun News reported that S. 20, an Arizona-style immigration bill introduced by Senator Lawrence Grooms, was moving forward. However, after clearing the State Senate Judiciary Committee, the bill failed to garner sufficient votes to set it for Special Order, i.e., moving the bill to the top of the calendar. Accordingly, it is presently unknown when the bill will be voted on by the entire State Senate.

In Colorado, the sponsor of House Bill 1107, Rep. Randy Baumgardner, abandoned his attempt to institute an Arizona-like law, believing that legal challenges would burden taxpayers, reports Fox News Latino. On February 14, the House Committee on Agriculture, Livestock, & Natural Resources indefinitely postponed the bill. As we previously noted, a group of Republican Colorado lawmakers recently traveled to Arizona to learn more about its approach to immigration legislation.

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On January 27, the Mississippi House of Representatives approved an immigration enforcement bill providing for fines of up to $25,000 per day against employers that hire unauthorized workers. As reported by the Clarion Ledger, the House amendments to Senate Bill 2179 are a significant departure from the original provisions, paving the way for a contentious reconciliation process. Before the bill can become law, it needs to be approved by the Senate, then signed by the Governor.

Originally, S.B. 2179 provided that a Mississippi resident could sue public officials or agencies that adopt or implement policies limiting or restricting the enforcement of federal immigration laws. Courts could impose civil penalties of between $500 to $5,000 for each day the policy remained in effect after a suit was filed.

The House amendments not only bring in employers as the enforcement target, but also dramatically increase the penalties. The amendments provide that a person may sue an employer “to challenge the hiring practices of the employer as being in violation of . . . the enforcement of state or federal immigration laws.” Moreover, courts could impose penalties of between $5,000 and $25,000 for each day the employer committed a violation. 

Photo credit: MBPhoto, Inc.

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Florida recently became the 14th state to require government employers and contractors to use E-Verify to confirm employees’ legal work status. On his first day in office, January 4, 2011, Governor Rick Scott signed Executive Order Number 11-02, which took effect immediately and requires:

• all state agencies under the direction of the governor to verify employment eligibility of all current and prospective employees through E-Verify; and
• that such agencies’ contracts contain an express requirement that contractors use E-Verify to confirm the legal work status of: (1) their employees on public works projects in Florida; and (2) all persons, including subcontractors, assigned by the contractor to work on those projects.

Additionally, the order states that agencies not under the direction of the governor are “encouraged” to use E-Verify to verify current and prospective employees’ legal work status, and to require the same of those agencies’ contractors and subcontractors.

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With uncertainty surrounding immigration reform at the federal level, a growing number of immigration reform proposals are being made at the state level, many of which borrow measures from Arizona’s controversial SB 1070. Examples of recent immigration enforcement proposals include:

• A group of Republican lawmakers in Colorado, some of whom traveled to Arizona to learn more about its approach to immigration legislation, are discussing what should be included in immigration-related bills to be introduced in early 2011. One bill is expected to require Colorado employers to use E-Verify.
• In Florida, a senator has introduced a bill that would allow law enforcement officers—during a lawful detention or arrest—to ask for immigration documents if the officer suspects the detainee may be in the country illegally. The bill prohibits officers from using race as a reason for checking the detainee’s documentation.
• In Nevada, an assembly member has asked the state’s Legislative Counsel Bureau to draft a bill based on Arizona’s SB 1070; another assembly member has requested a bill requiring state employers to use E-Verify.
• Two senators in South Dakota are drafting a bill that would prohibit providing transportation or lodging to an individual known to be in the United States illegally. The bill also would prohibit illegal immigrants from asking for employment.
• In California, proponents of an SB 1070-style initiative have started collecting signatures in an effort to put the initiative on the February or June 2012 ballot.

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Senator Jeff Merkley (D–OR), who has been working with Sen. Charles Schumer (D-NY) on a comprehensive immigration bill, does not expect action on immigration reform this year, according to The Hill. The senator’s statement exemplifies the on-again, off-again relationship that legislators have with immigration reform. Below is a brief recap of comprehensive immigration reform developments so far in 2010:

• February: Although immigration reform was a staple of President Obama’s campaign and early-term rhetoric, his State of the Union Address contained only one sentence on the topic.
• March: Senators Schumer and Lindsey Graham (R–SC) unveiled their “blueprint” for comprehensive reform.
• April: Senate Majority Leader Harry Reid (D–NV) predicted that the issue would not be addressed until after Memorial Day.
• June: President Obama urged Republicans to work with Democrats to pass a bill.
• July: In a keynote speech at American University’s School of International Service, President Obama pressed for immigration reform.
• August: A spokesperson for Senator Dick Durbin (D–IL), who introduced the Development, Relief and Education for Alien Minors Act (the "DREAM Act") (pdf), legislation to help students who immigrated to the U.S. as children obtain citizenship, reportedly said that comprehensive immigration reform is still possible in 2010.

Meanwhile, some state and local governments have attempted to fill the void they believe is created by federal inactivity on immigration reform, with Arizona attracting the most attention.

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Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers.

Pennsylvania

House Bill 1502 would require all contractors and subcontractors on public works projects to verify the employment eligibility of new employees through E-Verify, the federal electronic employment verification system, and to verify existing employees’ Social Security numbers. In June 2010, this bill was referred to the House State Government Committee.

House Bill 1503 would require all construction industry employers to verify the employment eligibility of new employees through E-Verify and to verify existing employees’ Social Security numbers. This bill was passed by the House in June 2010 and is currently in the Senate Labor and Industry Committee.

Employers that in good faith rely on federal programs (E-Verify and the Social Security Number Verification Service) to verify new employees’ legal work status and existing employees’ Social Security numbers will be immune from sanctions. However, employers face debarment from public work contracts (HB 1502) or license forfeiture (HB 1503) for noncompliance. Additionally, employers could face civil liability for retaliating against employees who complain about alleged violations or participate in investigations, hearing or inquiries concerning alleged violations.

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On July 28, 2010, the U.S. District Court for the District of Arizona issued a highly anticipated order in United States v. State of Arizona, a recent federal lawsuit challenging the constitutionality of the Arizona “Support of Law Enforcement and Safe Neighborhoods Act” (“SB 1070”). The order temporarily enjoins enforcement of certain provisions of SB 1070 pending the court’s final ruling in the matter. To learn more, please continue reading Littler's ASAP, What Arizona's Controversial Immigration Law Means for Employers, by Neil M. Alexander and Michael J. Lehet.

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According to the Salt Lake Tribune, since the July 1, 2010, effective date of a Utah law requiring businesses with 15 or more employees to verify new hires’ work status through E-Verify, less than one-third have done so. The figure did not surprise Utah Governor Gary Herbert, who stated that even the law’s sponsor did not expect universal compliance. Some suggest that employers either do not know about the new requirement to use the federal electronic employment verification system, or are not hiring due to poor economic conditions, which could explain the low enrollment numbers.

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With the July 2, 2010 submission deadline approaching, individuals in Washington are trying to collect 241,153 signatures to place an immigration-related measure on the November ballot, reports the Seattle Times. Employment-related provisions of proposed initiative I-1056 (pdf) include:

• Requiring all employers, after making an offer of employment, to verify the individual’s eligibility to work in the United States, using programs such as E-Verify.
• Making it an unlawful employment practice to terminate a U.S. citizen, or a permanent resident applying for naturalization, when an illegal alien is employed at the same job site or in a similar position at a different site.

Since 2006, similar measures have failed to get certified, and the chances for a 2010 measure are slim, given the campaign’s lack of funds and the absence of major party support for the measure.
 

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The New York Times reports that the Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment (pdf) to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. The proposed law also would penalize contractors violating the law by prohibiting them from doing business with the state. Additionally, the state attorney general’s office would be required to set up a hotline by which people could anonymously report alleged hiring of illegal immigrants, and to investigate such allegations.

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The Washington Post reports that acting Solicitor General Neil Katyal has submitted a brief (pdf) on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act (LAWA), a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants (Note: LAWA is a different law than Arizona’s recently enacted and controversial immigration enforcement law.). The petition (pdf) for Supreme Court review was originally filed by a coalition that includes the U.S. Chamber of Commerce, civil libertarians and Latino groups.

The brief presents the administration’s position that federal law preempts this state law, and argues that upholding the law would:

"disrupt 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."

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The Arizona Daily Star reports that several days after S.B. 1070, Arizona’s controversial immigration bill, became law, the legislature passed H.B. 2162, which clarifies when police officers may inquire into an individual’s immigration status. Under H.B. 2162, an inquiry can occur if:

• an officer performs a lawful stop, detention or arrest based on a town, city, county or state law; and
• the officer has reasonable suspicion that a person is an alien and is unlawfully present in the United States.

The language in H.B. 2162 does not amend S.B. 1070; however, when S.B. 1070 takes effect, the revised language in H.B. 2162 will take precedence because it was adopted more recently.

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With many in the nation watching, Arizona Governor Jan Brewer signed the "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070") into law. The legislation represents Arizona's latest effort to combat illegal immigration and is now the centerpiece of a national political firestorm, including criticism from President Obama and numerous public interest groups. In addition, SB 1070 already is the subject of two federal lawsuits challenging its constitutionality. Lost among this debate, however, are those provisions of the law directed toward Arizona employers. To learn more about the law and its implications for employers, please continue reading Littler's ASAP What Arizona's Controversial Immigration Law Means for Employers by Neil M. Alexander and Michael J. Lehet.

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Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the “broadest and strictest immigration measure in generations.” The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure’s legality.

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A controversial Arizona immigration enforcement bill (S.B. 1070) moved one step closer to becoming law when the state senate approved the measure on April 19. The bill has been sent to Governor Jan Brewer for her signature or veto. As reported by The Los Angeles Times, most observers expect her to sign the bill. Brewer has until April 24 to act on the bill; if she neither signs nor vetoes the bill, it will become law within 90 days of the end of Arizona’s legislative session.

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The New York Times reports that Arizona legislators have given preliminary approval to legislation that primarily concerns State enforcement of federal immigration laws. H.B. 2632, which is nearly identical to a bill passed in February by the state senate (S.B. 1070), would, among other things, allow police officers to charge illegal immigrants with criminal trespassing based solely on their presence in Arizona. The two bills must now go through reconciliation, which is expected to occur within the next two weeks.

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AZCapitolTimes.com reports that Arizona’s senate, by a party-line 17-13 vote, passed a broad, immigration-focused bill covering a wide range of topics including law enforcement procedures, criminal law, and traffic congestion. The bill would:

• require police officers to make a reasonable attempt to determine a person’s immigration status when “practicable;”
• allow illegal immigrants to be charged with trespassing;
• make it unlawful for anyone seeking work, regardless of their immigration status, to enter a vehicle stopped on the street;
• penalize drivers who impede traffic in an attempt to hire a day laborer;
• prohibit state and local governments from adopting policies that restrict the enforcement of immigration laws; and
• require state and local governments to comply with, and assist in enforcing, federal immigration laws.

The bill now moves to Arizona’s house of representatives for consideration.

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The U.S. Supreme Court has asked the Solicitor General to submit a brief outlining the Obama administration’s stance on an Arizona law that punishes companies for hiring illegal immigrants, the Miami Herald reports. The justices will review this brief before deciding whether to hear a challenge to the law.

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The Immigration and Customs Enforcement (ICE) has announced that it will begin to investigate workplaces in all 50 states to identify employers who are hiring undocumented workers. Specifically on July 1, 2009, ICE launched a comprehensive audit initiative and issued Notices of Inspection (NOIs) to 652 businesses nationwide. States are also beginning to increase their enforcement efforts so employers should take steps to ensure compliance with both federal and state immigration requirements. Continue reading Littler ASAP "Latest Developments in Employment Verification Enforcement" by Jorge R. Lopez, Chadwick M. Graham and Melissa M. Randall.

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On March 12, 2009, a federal district court in Illinois ruled that a state law prohibiting employers from enrolling in the federal E-Verify program violates the Supremacy Clause of the United States Constitution. United States v Illinois, CDIll, No 07-3261 (Mar. 12, 2009). The Illinois Right to Privacy in the Workplace Act (Ill. P.A. 95-137), scheduled to take effect on January 1, 2008, amended the Illinois Right to Privacy Act by prohibiting employers in the state from enrolling in the E-Verify program until the Social Security Administration and the Department of Homeland Security (DHS) were able to achieve a 99% accuracy rating with regard to making a determination on tentative nonconfirmation notices within three days of issuance.

The DHS sued the State of Illinois to repeal the law saying that it interfered with an employer’s right to participate in the voluntary federal program to verify whether a potential employee has valid U.S. work authorization. The federal district court in Illinois sided with DHS, holding that the law is preempted by the Supremacy Clause. Even though the E-Verify program is not mandatory, the court reasoned that the state law frustrates Congress’ intent to make the program available to all employers. The district court enjoined the State of Illinois from enforcing the law.

This article was written by Jorge R. Lopez, a shareholder in Littler's Miami office.

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Senate Bill 23, the "Fair and Legal Employment for Coloradans Act," was killed in the Senate Committee on State, Veterans & Military Affairs. The bill, sponsored by Senator David Schultheis (R- Colorado Springs), would have required employers to participate in the federal E-Verify program. On his website, Sen. Schultheis had the following to say about the bill's defeat :

This bill was killed in State Affairs committee on 2/8 by Democrats on a party-line vote."
 

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Indiana state senator Mike Delph has introduced S.B. 580, legislation that he calls "one of the toughest illegal immigration bills in the country." If passed, S.B. 580 would:

• prohibit Indiana employers from knowingly hiring unauthorized aliens
• provide escalating penalties for violations of the act
• establish an affirmative defense if an employer complied in good faith with federal employment verification requirements

The bill is a modified version of legislation that was submitted last year, and is expected to be heard by the Senate Committee on Pension and Labor in early February.

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Today, Arkansas state representative Bill Sample introduced H.B. 1093, the "Arkansas Taxpayer and Citizen Protection Act of 2009" -- a bill nearly identical to Oklahoma's H.B. 1804, which passed by an overwhelming majority in 2007. Read our earlier blog post for background on H.B. 1093.

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The Arkansas Democrat Gazette reports that Arkansas state representative Bill Sample plans to introduce a bill requiring, in part, verification of Social Security numbers prior to the issuance of employee identification cards. Rep. Sample made the following comments about the bill:

It will establish proper guidelines for the issuance of identification cards and documents. ... We're trying to define who can give out identification cards and what those ID cards would state. We don't want those phony ID cards to go out. ... If you give them an ID card, you're responsible to do a little due diligence and make sure that person is in the state legally.

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Wyoming lawmakers are considering immigration legislation that would eventually require all Wyoming employers to participate in E-Verify. Under H.B. 0103, all employers would be required to participate in E-Verify not more than three years after the effective date of the act. 

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Senator Brad Ashford has introduced L.B. 34, the "Nebraska Fair and Legal Employment Act." The bill would, among other things, require all employers to participate in E-Verify by 2011.

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According to an Associated Press pre-session survey, a majority of participating Nebraska state legislators support tough policies on illegal immigration. Measures favored by the lawmakers include requiring employers to use the federal employment verification system, E-Verify. See the complete story in the Columbus Telegram.

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