States Implement Immigration Laws in Response to Lack of Federal Legislation

February 2008Newsletters Legally Speaking

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Arizona – Work in Progress

On February 7, 2008, a federal district court in Arizona upheld the state’s new employer sanctions law for hiring unauthorized aliens entitled, “The Legal Arizona Workers Act” (H.B. 2779) – a remarkable outcome for a law generally viewed as the most stringent state law of its type in the nation. Upon signing the law, Arizona Governor Janet Napolitano stated that the aggressive new law implementing severe actions against employers who knowingly or intentionally hire undocumented workers was necessary because Congress had “failed miserably” to address immigration reform.

The Legal Arizona Workers Act was originally passed on July 2, 2007, and was scheduled to go into effect on January 1, 2008. However, it was delayed in response to two lawsuits filed to block its implementation. The new law had already survived earlier court challenges filed by a coalition of immigrant rights and business groups. An earlier suit for a temporary restraining order was denied by both the federal court in Arizona and the U.S. Court of Appeals in December. On February 7, the federal district court issued its final ruling in the second suit, determining that the law was not preempted by federal law, specifically the Immigration Reform and Control Act of 1986 (IRCA), because it does not encroach on the federal government’s authority to regulate immigration law based on the fact that it relates to state control over the issuance of business licenses, which is specifically exempted from IRCA. In response to the most recent ruling, business and immigrant rights groups filed an appeal, seeking to consolidate it with an appeal from an earlier lawsuit.

At present, enforcement of the Law is postponed until at least March, when the next hearing in response to the appeals is scheduled, in concurrence with the state’s 15 county prosecutors. While all parties await a ruling, Governor Napolitano urged lawmakers to address what she termed as “flaws” in the new law, including assurances that the law cannot be used to discriminate.

The Legal Arizona Workers Act imposes strict sanctions on employers who hire unauthorized aliens:

  • a first-time violation will result in suspension of a company’s state license to conduct business for up to 10 days and carry a three-year probationary period
  • for a company that actively takes steps to avoid the hiring ban, the first offense will result in a minimum 10-day suspension and carry a five-year probationary period
  • for second violations occurring during a probationary period, business licenses will be permanently revoked

Additionally, the Act requires employers in Arizona to participate in the federal E-Verify system (known as the Basic Pilot Program) operated by the Department of Homeland Security.

Missouri – Success?

On January 31, 2008, a federal judge in Missouri upheld a city ordinance that denies business licenses to employers who hire unauthorized aliens, rejecting arguments against the ordinance made by the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund. The Missouri federal court held that the ordinance was not preempted by federal law because it is primarily a business license regulation,“an area historically occupied by the states.”

The Missouri ordinance (No. 1722) bars any employer that knowingly hires an illegal alien from obtaining or renewing a business permit, city contract, or grant, and includes a safe harbor provision for employers who use the federal E-Verify system. The upholding of this ordinance comes after the final ruling on Hazelton, Pennsylvania’s ordinance, which related to the employment of unauthorized aliens that declared that ordinance preempted by federal law.