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.
Among other provisions, the law:
- allows police officers to arrest individuals unable to provide documentation demonstrating their legal right to be in the United States;
- allows police officers to charge illegal immigrants with criminal trespassing;
- allows state residents to sue Arizona’s local or state officials or agencies if they “adopt or implement a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.”
The law also contains provisions regarding verification of employment authorization. Since December 31, 2007, Arizona employers have been required to use E-Verify, the federal electronic employment verification system, to authenticate employees’ legal work status. The new law amends existing provisions to require employers to retain employee verification records for either the duration of the employee’s employment or at least three years, whichever is longer.
Additionally, the new law establishes an affirmative defense of “entrapment” for employers charged with knowingly or intentionally employing unauthorized aliens. To successfully assert the defense, employers must prove, by a preponderance of the evidence, that:
- law enforcement officers or their agents, and not the employer, started the idea of knowingly or intentionally hiring an unauthorized alien;
- law enforcement officers or their agents urged and induced the employer to knowingly or intentionally hire an unauthorized alien; and
- the employer was not predisposed to commit the violation before law enforcement officers or their agents urged and induced the employer to commit the violation.
However, an employer will not be deemed “entrapped” if it was predisposed to knowingly or intentionally hire unauthorized aliens and the law enforcement officers or their agents “merely provided the employer with an opportunity to commit the violation.”