Immigration Reform Update - Sacks Tierney, PA, Attorneys - Scottsdale Arizona Law Firm providing legal services in real estate, business and corporate law, construction, employment, family law, immigration and civil litigation

IMMIGRATION AND NATIONALITY LAW

March 2007

Immigration Reform:
No Longer Just a Federal Issue

The flow of undocumented aliens into Arizona has prompted a flurry of bills in the state legislature

In a recent speech, Governor Napolitano stated that two-thirds of the roughly three million foreign nationals who illegally enter the U.S. this year will come across Arizona's border with Mexico. While immigration issues are the responsibility of Congress and the federal courts, the rising flow of undocumented aliens through Arizona has prompted our state legislators to pursue legislation that would penalize unauthorized aliens and the Arizona companies that employ them. By the end of February, Arizona lawmakers had introduced more than two dozen immigration-related bills for consideration during the current legislative session. Following is a brief discussion of several immigration bills that have been introduced in the state legislature.

Criminal trespass, day laborers (H.B. 2589). This bill would expand criminal trespass in the first degree to include adults who stand or remain unlawfully in specific places for the purpose of soliciting personal employment. Depending on the circumstances, a violation would constitute a Class 1 misdemeanor (up to six months in jail and a fine of up to $2,500) or a Class 6 felony (one year in jail and a $150,000 fine).

Local immigration enforcement (HCR 2049). The resolution would refer to Arizona voters a measure requiring Arizona counties and municipalities to enforce federal immigration laws: including maintaining information regarding the immigration status of individuals; determining eligibility for federal, state and local benefits, services or licenses; legal domicile; confirmation of identity; and the training of police to investigate federal immigration law violations.

Law enforcement cooperation (H.B. 2461). Under this proposal, police would be required to check into the immigration status of anyone detained for violation of state or municipal law.

Border security (H.B. 2757). This appropriations bill would provide $25 million in funding for an Arizona border enforcement security team.

Fair and legal employment (H.B. 2779). This bill would create an aggravated identity theft charge for the taking of a fictitious or real person's identity in order to get a job. To comply with this law, businesses must swear that they do not employ unauthorized aliens, and false affidavits are punishable by fines ranging from $5,000 to $50,000 for a first offense (a class 6 felony), to $15,000 to $150,000,000 for a third violation. After receiving a signed complaint, the Attorney General would confirm its validity and demand that the employer take corrective measures and participate in the basic employment verification pilot program (a federal program jointly administered by the Department of Homeland Security [DHS] and the Social Security Administration).

The Arizona Dream Act (HCR 2029). This resolution would allow illegal minors, under certain circumstances, to qualify for instate college tuition status. Qualifying individuals would also be eligible for scholarships, and their immigration status would be confidential.

Unlawful employment practices (H.B. 2386). Failure to pay workers' compensation and employment withholding tax would carry a state penalty, regardless of whether the employer paid employees in cash or by check. A third violation would be a class 6 felony, resulting in the suspension of the employer's license to do business.

Licensing eligibility (H.B. 2467). State and local government agencies would not be allowed to issue or renew a license to operate a business in Arizona without verifying that the applicant is in the United States legally.

Knowing hire (H.B. 2523 and S.B. 1422). Under this proposal, Arizona law would duplicate the federal prohibition against knowingly hiring an "unauthorized alien"; that is, one lacking the right under federal law to work in the U.S.

The flurry of state legislation notwithstanding, immigration reform remains primarily a federal issue. In 2006, Congress demonstrated more talk than action on pressing immigration matters, but it did accomplish the following:

Congress will probably pass a comprehensive immigration reform bill in 2007 to provide for strong enforcement and a workable immigration system. Leaders of both parties began strategizing for a comprehensive immigration reform law even before Congress adjourned in early December. Senators Kennedy and McCain plan to introduce their bill in the Senate, and passage could occur by March or April.

Many House Republicans learned from the mid-term elections that anti-immigrant policies do not translate into support at the polls. Not only are House members expected to sign on to the comprehensive bill, but there is a strong possibility that the 700-mile fence project, enacted into law in 2006 but now funded, will be reconsidered. House passage of comprehensive immigration reform legislation is expected early this summer.

Skilled workers seeking temporary visas and permanent residence may well be granted short-term relief in advance of the enactment of a comprehensive reform law. One vehicle for ensuring that this occurs would be the passage of the Securing Knowledge Innovation and Leadership bill.

On January 10, bills to "improve agricultural job opportunities, benefits, and security for aliens in the U.S." were introduced in both the House and the Senate. Both S 237 and H.R. 371 have sponsors from both sides of the aisle.

Undocumented agriculture workers would be eligible for a "blue card" if they can demonstrate having worked in American agriculture for at least 150 days over the previous two years. The blue card would entitle the worker to a temporary legal resident status, and holders would be allowed to travel in and out of the U.S. The total number of blue cards would be capped at 1.5 million over a five-year period, and the program would sunset after five years. Spouses and minor children of blue card workers would be eligible to apply for a blue card if they already live in the U.S. This would permit them to work and travel in and out of the United States. Blue-card holders would be allowed to work in other, nonagricultural jobs as long as the agriculture work requirements were met.

The blue-card holder would be required to work in American agriculture for an additional three years (working at least 150 days per year) or five years (working at least 100 work days per year) before becoming eligible to apply for a green card to become a permanent legal resident. Before applying for a green card, participants would be required to pay a fee of $500, show that they are current on their taxes, and show that they have not been convicted of any crime that involved bodily injury, the threat of serious bodily injury, or harm to property in excess of $500.

Budget issues. President Bush's recommended budget would significantly increase funding for Homeland Security. Immigration enforcement and border security operations would result in a substantial increase of $1 billion for border fencing and surveillance and also fund an additional 3,000 Border Patrol agents.

The Administration's budget would also bolster DHS's interior enforcement efforts, providing increased funding for a program to identify and deport undocumented immigrants in U.S. prisons, as well as continued funding for the Basic Pilot program. An additional $78 million - a 50% increase over FY 2007 - would be used to train state and local law enforcement officers in federal immigration law and authorize them to identify and remove undocumented immigrants.

Which of these measures will pass, and in what final form, is unclear at this point, as is the impact they may have on employers and workers. Consequences may range from a shrinking labor force to sanctions against employers, and we will keep you advised on the effect of this year's legislation.

These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the service of a professional should be sought.