On September 28, 2011, U.S. Immigration and Customs Enforcement (ICE) announced that it arrested more than 2,900 convicted criminal aliens and fugitives during a 7-day “Cross Check” enforcement operation. The operation was carried out in all 50 states and four U.S. territories by ICE officers and agents in coordination with local, state and federal law enforcement agencies. All detained individuals had prior criminal convictions; more than half for felony violations. Additionally, 681 individuals were fugitives who had previously been ordered to leave the country but failed to do so; 386 individuals had previously been removed from the country multiple times and had illegally re-entered the U.S.
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.
The court held that Sections 16 and 17 are both likely preempted by the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324a(h)(2), which states: “The provisions of this section preempt any state or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employee, or recruit or refer for a fee for employment, unauthorized aliens.” In reaching this conclusion, the court stated that Sections 16 and 17 contain “sanctions” within the meaning of the federal statute.
The ruling does not address the E-Verify provisions of HB 56 previously addressed in this blog, and those provisions will go into effect as scheduled. Employers should continue to make preparations to ensure that they comply with the E-Verify provisions on a timely basis. Failure to comply may result in an employer being debarred from state contracts, having its state government grants or incentives cancelled, and its business license suspended or revoked for up to 60 days. For a second offense, an employer may have its business license revoked permanently, so serious consequences for non-compliance are still intact following the September 28 ruling. The preliminary injunction will remain in effect until final judgment is entered on the lawsuit, which likely will not occur for several months. In the meantime, Alabama employers should continue to monitor this case and consider seeking the advice of experienced employment and/or immigration law counsel to determine the best strategies and practice following this ruling.
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.
House Bill 56
On June 9, 2011, Alabama Governor Robert Bentley signed into law HB 56, a sweeping immigration law covering many topics including law enforcement, contract law, education, and employment. Of particular concern for employers are two provisions: sections 16 and 17.
Section 16 prohibits employers from deducting as business expenses wages or compensation paid to an unauthorized alien, and businesses that knowingly violate this provision can be liable for a penalty of 10 times the deduction claimed. Section 17 makes it a discriminatory practice for an employer to 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 business knows, or reasonably should know, is an unauthorized alien. Employers violating section 17 can be subject to a civil suit, and the prevailing party may recover compensatory damages and reasonable attorneys’ fees.
None of the three lawsuits directly challenges the E-verify provisions of HB 56. However, the lawsuits filed by the religious and public interest entities do seek to have the law declared unconstitutional in its entirety.
The DOJ’s Complaint
The DOJ’s complaint alleges that the provisions of HB 56 are preempted by federal law and violate the Supremacy Clause of the U.S. Constitution. The Supremacy Clause, found in Article VI, Clause 2 of the Constitution, states that the “Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The DOJ contends that “the federal government has preeminent authority to regulate immigrations matters” which is “derive[d] from the United States Constitution and numerous acts of Congress.” While the DOJ acknowledges that states may exercise their police power in a way that incidentally or indirectly affects aliens, the complaint asserts that states “may not establish [their] own immigration policy or enforce state laws in a manner that interferes with the federal immigration law.”
If HB 56 becomes law, the DOJ contends, “[i]t will conflict with longstanding federal law governing the registration and employment of aliens.” As the DOJ points out, the licensing savings clause of the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(h)(2), states that “[s]tate or local laws 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” are specifically preempted by the IRCA. Accordingly, because HB 56 imposes sanctions on employers and potential employers of unauthorized aliens, and it is not a licensing or similar law, HB 56 is preempted. Moreover, the DOJ argues that the federal government has not ceded to the states its legislative and regulatory authority over immigration, noting that “Congress has further exercised its authority over immigration and the status of aliens.” Federal law, argues the DOJ, prohibits hiring, recruiting, or referring for a fee, unauthorized aliens, and the continued employment of unauthorized aliens once an employer discovers their unauthorized status.
Implications for Employers
In the meantime, employers should assume that the challenged provisions of HB 56 will go into effect no later than September 29, 2011. Because the E-Verify provisions, as noted above, have not been specifically challenged, employers should continue preparations to be enrolled in E-Verify by the statutory deadlines of January 1, 2012 (for employers who contract with or receive incentives or grants from the state) and April 1, 2012 (for all other employers). Regardless of whether the law is upheld or struck down, employers should continue to take steps to ensure they remain in compliance with federal immigration law. These steps include: (1) auditing current Form I-9's to correct any errors; (2) training personnel on properly completing Form I-9's; and (3) reviewing, revising, and developing policies for storing and retaining I-9 documents.
Because the unsuccessful parties may appeal the matter, complete and final resolution may be several months away. Thus, employers should consider seeking the advice of experienced employment and/or immigration law counsel to determine the best strategies and practices following the court's ruling.
Photo credit: MBPhoto, Inc.
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.
On February 10, the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement held a hearing, “E-Verify – Preserving Jobs for American Workers,” in which it considered whether to make E-Verify mandatory for all employers. House Judiciary Committee Chairman Lamar Smith (R–TX ) favors the idea, as does the Subcommittee’s Chairman, Representative Elton Gallegly (R–CA). In introducing his reasons for supporting the expansion of E-Verify electronic employment verification program, Representative Smith stated: “With unemployment over 9% now for 21 months, jobs are scarce and families are worried. According to the Pew Hispanic Center, seven million people are working in the U.S. illegally. These jobs should go to legal workers.”
Those in favor of requiring all employers to use E-Verify contend that independent analyses concerning E-Verify by the U.S. Government Accountability Office and private-sector firm Westat confirm that the program quickly and accurately authenticates legal work status. Moreover, they note that United States Citizenship and Immigration Services (USCIS) has implemented measures to improve E-Verify’s accuracy, such as a photo screening tool that allows an employer to check the photos on Employment Authorization Documents and green cards against images stored in USCIS databases.
The Washington Post, however, reports that opinions in the business community vary. U.S. Chamber of Commerce officials claim the reaction among members is mixed. For smaller businesses, or those in highly mobile industries, e.g., construction firms, the system presents additional practical and technological challenges. Certain sectors, e.g., agriculture, oppose the proposition, arguing that removing unauthorized workers from the labor force would destabilize the entire sector. The vice president of the American Nursery & Landscape Association stated: "Simply put, any E-Verify expansion that comes without meaningful immigration reform would be disastrous for the American agricultural economy. It will leave the United States importing food and exporting jobs."
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.
Despite no significant legislative advances concerning immigration during his first two years in office, and an upcoming legislative session with a Republican majority in the House and increased Republican presence in the Senate, President Obama told the Congressional Hispanic Caucus that he will continue to push for comprehensive immigration reform in 2011, reports Politico. Though the gesture was welcomed by caucus members, it remains uncertain whether Obama will find similar support in his own party given that many new, incoming legislators are veering to the right politically and pushing for more typically conservative initiatives like increased border control and enforcement. The President’s pledge came shortly after the Development, Relief and Education for Alien Minors Act (DREAM Act), which would have provided six years of conditional permanent residency to certain undocumented minors who have completed high school and then join the military or attend college for at least two years, failed to garner sufficient Senate votes to overcome a Republican filibuster.
Supreme Court Solicits Administration's Stance on Arizona Law Aimed at Companies that Hire Undocumented Workers
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.
The law, enacted in 2006, allows private complaints to be filed against companies. Any company found to have “knowingly or intentionally” hired illegal immigrants can have its business license suspended or revoked.
The U.S. Chamber of Commerce, along with other corporate, labor and immigrant groups, is challenging the Arizona law, claiming that it interferes with Congress’s ability to set immigration policy. The Immigration Reform and Control Act explicitly preempts state action on immigration, except for regulations regarding business licensing. Although the Arizona law has yet to be executed, opponents argue that enforcement would violate federal law.
A Supreme Court ruling on the case could have a broad impact on immigration legislation: In the first three months of 2009, state and local governments introduced more than 1,000 immigration-related bills, 150 of which are specifically related to employment.
The European Union has formally adopted a work authorization program intended to attract highly skilled foreign workers and modeled after the United States’ Green Card program. The “Blue Card” will allow immigrants to work in any EU member state (except Great Britain, Ireland and Denmark) and will entitle card holders to limited social and welfare rights, for a renewable period of one to four years, EUobserver.com reported. Blue Card holders will receive equal treatment with nationals as to working conditions, including pay and dismissal, and will have some ability to move between EU member states. The program also includes penalties for employers who hire illegal immigrants.
According to a new report by the Center for Immigration Studies, immigrants to the United States have been hit harder by the recession as compared to native-born Americans, with larger increases in unemployment among both educated and uneducated workers. The report, which was based on U.S. Census statistics, found that immigrants (legal and illegal) now have significantly higher unemployment than natives, which represents a departure from the recent past, when native-born Americans typically had higher unemployment rates. Immigrant unemployment in the first quarter of 2009 was 9.7%, the highest level since 1994 (when data began to be collected for immigrants). The current unemployment rate for natives is 8.6%, also the highest since 1994.
Other key findings of the study include:
- The immigrant unemployment rate is now 5.6 percentage points higher than in the third quarter of 2007, before the recession began. Native unemployment has increased 3.8 percentage points over the same period.
- Among immigrants who arrived in 2006 or later, unemployment is 13.3%.
- The number of unemployed immigrants increased 1.3 million (130%) since the third quarter of 2007. Among natives the increase was five million (81%).
As reported in The Los Angeles Times, Steven Camarota, the study's coauthor, commented that many of the immigrant job losses came in low-skill occupations. In construction, for instance, the immigrant jobless rate climbed to 20% in the first quarter of 2009, from 4.7% 18 months earlier.
As reported at Stateline.org, a new report finds that the estimated 12 million illegal immigrants in the United States are settling in states such as Georgia and North Carolina, where relatively few lived 20 years ago. The findings could have financial implications for already stressed state and local governments.
Highlights of the report, conducted by the nonpartisan Pew Hispanic Center, include:
- California leads the nation with 2.7 million illegal immigrants, but its share of the national total has dropped from 42% in 1990 to 22% in 2008. Instead, larger numbers of illegal immigrants are moving to states in the Southeast, Southwest, Mid-Atlantic, Midwest and Mountain regions.
- Florida, Illinois, New Jersey, New York and Texas have retained their appeal to illegal immigrants.
- The children of illegal immigrants comprise 6.8% of K-12 students in the U.S., up from 5.4% in 2003.
- Six in 10 illegal immigrants lack health insurance, more than double the uninsured share among legal immigrants and four times the uninsured share among U.S.-born adults.
- An estimated 8.3 million of the nation’s 154 million people in the labor force are illegal immigrants, according to 2008 estimates. That is a share of about 5.4%, up from 4.3% in 2003.
The Pew Hispanic Center periodically examines trends in the unauthorized immigrant population. State and local officials watch such trends carefully because state and local governments pay for the services provided to illegal immigrants, especially education, health care and public safety.