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July 2011, Volume 18, Number 3

States: Enforcement

Arizona. The US Supreme Court in May 2011 upheld Arizona's Legal Arizona Workers Act in a 5-3 decision. LAWA, signed into law by then-governor and now-DHS Secretary Janet Napolitano, requires Arizona employers to use E-Verify to check new hires and allows the state to revoke the business licenses of employers who repeatedly hire illegal immigrants.

The Immigration Reform and Control Act of 1986 imposed federal sanctions on employers who knowingly hire unauthorized workers. IRCA struck down state and local laws that punished employers who "recruit or hire" unauthorized workers, except via "licensing and similar laws." Arizona argued that it could supplement IRCA's sanctions by suspending or revoking the business licenses of employers who repeatedly hire unauthorized workers, and the Supreme Court agreed.

As of June 2011, DHS reported that 269,000 employers were enrolled in E-Verify, and that 903,000 hiring locations checked new hires. In FY10, E-Verify processed 16.4 million employment queries.

Mississippi and South Carolina have LAWA-type laws, and Georgia and Alabama recently enacted similar laws. The Supreme Court's decision upholding LAWA is expected to encourage more states to enact laws that require employers to use E-Verify. Employers joined migrant rights groups to oppose LAWA, emphasizing that errors in the E-Verify database could cause legally authorized workers to be denied employment and to allow unauthorized workers using valid documents belonging to someone else to be hired.

The fight continued over SB 1070, the 2010 Arizona law that requires police to determine the legal status of persons they encounter for other reasons if they believe them to be unauthorized. Arizona in May 2011 announced that it would petition the US Supreme Court to lift the injunction that has blocked implementation of SB 1070.

Republican Senator Russell Pearce, the driving force behind SB 1070, will face voters in a recall election. The district is heavily Republican, and recall supporters hope that a more moderate Republican can replace Pearce.

Bounty hunter Casey J. Nethercott lost his 60-acre southern Arizona ranch to two unauthorized Salvadoran migrants he detained in 2003. The migrants sold the ranch and Nethercott served a term in prison for being a convicted felon with a firearm. Arizona voters approved a constitutional amendment in 2006 banning unauthorized foreigners from collecting punitive damages in the state, and the governor in 2011 signed an amendment making the law retroactive to cover the Nethercott case and another case of a rancher who was ordered to pay damages to migrants he detained on his ranch.

Alabama. Alabama approved the toughest state law against illegal immigration in June 2011. HB 56 authorizes state and local police officers to check the status of anyone they stop based on a "reasonable suspicion" the person is an illegal immigrant, requires public schools to determine the immigration status of students and their parents, bars unauthorized foreigners from enrolling in public colleges, and prohibits landlords from renting to unauthorized foreigners.

Employers must use E-Verify to check the status of new hires beginning April 1, 2012, and immigrants must carry documents showing their status. Beginning January 1, 2012, firms with state contracts must sign affidavits promising not to knowingly or unintentionally hire unauthorized foreigners, and have their contractors sign similar affidavits.

Republican Micky Hammon, chief sponsor of HB 56, said its purpose is to create jobs for Americans by preventing "illegal immigrants from coming to Alabama and to prevent those who are here from putting down roots." Migrant advocates said that HB 56 was "clearly unconstitutional."

Georgia. Georgia in May 2011 enacted HB 87, a law similar to Arizona's SB 1070. The Illegal Immigration Reform and Enforcement Act of 2011 empowers police to check the documentation of persons they encounter while enforcing state and local laws and to detain people they suspect are illegally in the country. It also requires state agencies, businesses with state contracts, and other private employers with 11 or more full-time employees to use E-Verify to check new hires after July 1, 2013.

Georgia employers must confirm their participation in E-Verify when they seek to renew their business licenses. In order to deduct for state tax purposes more than $600 in wages paid to an employee, the employer must certify that the employee's legal status was checked via E-Verify.

Georgia farmers in June 2011 complained of labor shortages, prompting the state Department of Agriculture to survey farmers; they reported a shortage of 11,000 workers. In response, Republican Governor Nathan Deal suggested that some of the 100,000 ex-convicts on probation could fill jobs that farmers say have been left vacant by migrants frightened off by Georgia's new immigration law.

The ACLU in June 2011 won an injunction from a federal judge that blocked implementation of the sections of HB 87 that required police to check the immigration status of suspects who cannot provide identification and would punish those who intentionally transport or house unauthorized foreigners. The requirement that employers use E-Verify to check new hires and a section imposing fines of up to $250,000 and 15 years in prison for people who use fake identification to get a job went into effect July 1, 2011.

Other States. Over 1,500 bills related to immigration were introduced in state legislatures in the first quarter of 2011, and about 10 percent were enacted into law. Most imposed restrictions on unauthorized foreigners. In addition, some states enacted laws that require voters to show a photo ID; 12 states had such laws in spring 2011, and several more, including Ohio and Pennsylvania, are considering them.

Louisiana, Tennessee and North Carolina in June 2011 enacted laws requiring the state's employers to use E-Verify or retain copies of work authorization documents submitted by new hires for a year beginning in 2012-13. Tennessee already suspends the business licenses of employers who knowingly hire unauthorized workers; the new law adds monetary penalties. Louisiana's HB 646 exempts employers who participate in E-Verify from fines and business license suspensions for hiring unauthorized workers. North Carolina's HB 36 covers employers with 25 or more workers, and exempts seasonal workers employed for 90 or fewer days.

The Oklahoma Supreme Court in June 2011 upheld a 2007 state law, HB 1804, requiring employers to use E-Verify to check new hires. South Carolina enacted SB 20 in June 2011; it requires police officers to determine the legal status of persons they arrest and requires employers in the state to use E-Verify to check new hires. Residents may sue local governments that restrict officers from complying with the law.

Two civil rights groups sued Utah in May 2011, alleging that the Utah enforcement bills enacted in March 2011 violate federal civil rights laws; they asked a federal judge to prevent the Utah laws from taking effect on May 10, 2011 as planned. Representative Lamar Smith (R-TX) in April 2011 asked the US Attorney General to block implementation of the Utah guest worker program (HB 116), which would charge unauthorized foreigners $2,500 for a work permit beginning July 1, 2013 if the state can negotiate a waiver from the federal government, as a violation of federal authority to set immigration policy.

Florida in May 2011 enacted a law that requires police to make "a reasonable effort" to determine the immigration status of people they arrest. Republican Governor Rick Scott, elected in 2010, promised an Arizona-style law, but the Legislature was divided, and eliminated a requirement that all state employers participate in E-Verify at the behest of Florida state Senator JD Alexander, CEO of agribusiness and land firm Alico. Alexander said Alico used E-Verify to check new hires, but E-Verify should not be mandatory for all Florida employers because of its "flaws." Alexander said: "if every employer in every area is required to use E-Verify, a lot of things in this country aren't going to happen," such as crops not getting harvested.

Enforcement-oriented immigration bills passed at least one chamber of state legislatures in Indiana, Oklahoma and South Carolina in spring 2011.

The US Supreme Court in June 2011 upheld California's 2001 AB 540 law. It grants in-state tuition at state colleges and universities to all students who attend California high schools for at least three years and graduate. This will affect an estimated 41,000 students, including unauthorized foreigners and US citizens whose parents left California after the students graduated from California high schools. The difference between in-state and out-of-state tuition is $23,000 at University of California, $11,000 at Cal State and $4,400 at community colleges. Twelve other states have similar policies.

The number of states that issue driver's licenses to unauthorized foreigners, once 18, is now three: New Mexico, Utah and Washington. The 2005 REAL ID law, which set national standards for states to improve the security of driver's licenses, required states to verify the Social Security Numbers of applicants for licenses, which all states did as of 2010. Applicants who lack SSNs are fingerprinted instead in New Mexico.

Peggy Gargis, "Alabama sets nation's toughest immigration law," Reuters, June 9, 2011.