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Arizona enacts broad immigration enforcement law; US Senators propose comprehensive immigration reform


View original document | Send to colleague | Print Squire Sanders & Dempsey LLP
D. Lewis Clark, Jr., Heidi C. Larson, Rebekah J. Poston, Brian E. Schield, Gregory A. Wald and Donald A. Wall

USA
May 10 2010
Arizona SB 1070

On April 23, 2010 the governor of Arizona signed into law SB 1070, the "Support Our Law Enforcement and Safe Neighborhoods Act." The primary purpose of the law is to require law enforcement officials and state agencies to fully comply with and assist in the enforcement of federal immigration laws. SB 1070 expands the reach of the Legal Arizona Workers Act, enacted in 2007 (see our July 2007 Immigration Alert for details), and establishes as state crimes trespassing by illegal aliens, stopping to hire or soliciting work under specified circumstances, and transporting, harboring or concealing unlawful aliens. The law will take effect July 29, 2010.

While directed primarily at undocumented foreign nationals, the law immediately experienced public criticism as potentially fostering racial profiling and has already been challenged by several lawsuits contending constitutional violations based on the Fourth Amendment, Equal Protection Clause and Supremacy Clause by interfering with federal immigration power and authority. In response, the Arizona legislature amended the new law through HB 2162, which was signed into law by the governor on April 30. The most significant aspect of the amendment bans consideration of race, color or national origin in enforcement activity.

The following is a brief summary of the employer sanctions provisions of SB 1070, as amended by HB 2162:

Adds a new section to the state employer sanctions law, A.R.S. § 23-212, that establishes an affirmative defense to a violation of the law if the employer was entrapped by law enforcement. To assert the defense, an employer must admit the violation and prove that the idea of committing the violation started with the officer, the officer urged or induced the employer to commit the violation, and the employer was not predisposed to commit the violation.
Adds a new section, A.R.S. § 13-2928, that makes it a class 1 misdemeanor to attempt to hire or pick up passengers to work at a different location if the vehicle is impeding the normal flow of traffic. It is also a misdemeanor for a person to enter a vehicle in order to be hired for work at a different location if the vehicle impedes traffic. New A.R.S. § 13-2928(C) makes it a class 1 misdemeanor for an unauthorized alien to apply for work, solicit work in a public place or perform any work as an employee or independent contractor.
Directs employers to keep records of their employees’ work eligibility through E-Verify for the longer of three years or the duration of the employee’s employment.
US Senate Immigration Reform Proposal

On April 29, 2010 Senators Reid, Durbin, Schumer, Leahy, Feinstein and Menendez announced the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) Proposal. Below is a brief summary of select provisions of this proposed, but yet to be finalized, legislation for the broad reform of federal immigration laws:

Border Enforcement

Increases number of US immigration officers and improves technology and infrastructure.
Increases resources to prosecute smugglers and unauthorized border crossers.
Authorizes an auxiliary unit and use of the National Guard when needed at the border.
Creates a bipartisan commission to investigate the state of security on the borders and make recommendations.
Interior Enforcement

Implements an entry-exit system to monitor overstays.
Provides for more closely evaluating and monitoring the Visa Waiver Program (VWP), which will be suspended for countries with high overstay rates.
Creates stricter laws against illegal entry and reentry, and creates new penalties for passport fraud, passport trafficking and other document fraud.
Imposes penalties, including civil and criminal sanctions, on employers who exploit unauthorized labor and offers incentives to victims of labor exploitation for cooperating with law enforcement actions against employers.
Biometric Identification and Employment Verification

Within 18 months of the proposal’s enactment, the Social Security Administration (SSA) will be ready to issue fraud and tamper resistant Social Security cards that include a photograph and biometric data. The card will only contain the cardholder’s name, date of birth, Social Security number and a unique biometric identifier.
Through a six year transition period, employers will be required to verify employability of all new employees with the new Biometric Enrollment, Locally-stored Information and Electronic Verification of Employment (BELIEVE) System, which will replace the existing E-Verify pilot program.
Failure to use BELIEVE will carry penalties and knowing violations of the employment verification system, such as employment of an unauthorized worker, will carry enhanced civil fines of 300 percent.
The federal government must use BELIEVE within three years of enactment, and federal contractors must use it within four years.
Five years after enactment the new Social Security card will be the only valid document for employment verification purposes.
Government-certified private companies or the United States Postal Service will be permitted to perform the employment verification of employees.
High and Low Skilled Immigration and Family Immigration

Provides for an immediate green card for non-US students with an advanced degree from a US institution of higher education in the so called "STEM" fields of science, technology, engineering or mathematics, and who have an offer of employment in the field related to their degree from a US employer.

Eliminates the per country employment immigrant visa caps.

Creates new, stricter requirements on H-1B visas including: 1) revising how wages are determined; 2) requiring Web posting of job openings; 3) lengthening US worker displacement protection; 4) applying certain dependent employer rules to all H-1B employers; 5) prohibiting "for H-1B only" job ads; and 6) limiting the number of H-1B and L-1 employees that an employer of more than 50 workers in the United States may hire.
Authorizes the Department of Labor (DOL) to investigate application fraud and conduct H-1B compliance audits, and increases penalties for employer violations.
Creates new requirements on the L-1 visa prohibiting the hiring of an L-1B (specialized knowledge worker) for more than one year who will be located at a worksite other than that of the petitioning employer.
Specifies L-1 visa employer petition requirements for a new office; establishes L-1 wage rates, working conditions and employer penalties.
Establishes a new program to provide visas to promote property ownership by foreign nationals.
Makes technical fixes to the EB-5 visa program.
Makes H-1B and J-1 visas for non-US doctors more easily obtainable. Non-US doctors will also be given an easier path to permanent residency status.
Creates an E-3 visa for Irish nationals similar to the program for Australian nationals.
Enables fashion models to enter on O and P visas rather than H-1B visas.
Creates new paths for nurses and physical therapists to enter the United States as temporary and permanent workers.
Incorporates the AgJOBS bill – creating new "blue card status" for agricultural workers with eligibility for permanent residency – and revises existing H-2A visa (agricultural labor) provisions.
Makes changes to existing H-2B (temporary or seasonal worker) visa program.
Creates a new provisional H-2C visa for non-seasonal, non-agricultural workers, which is valid for three years and is renewable one time.
Creates a Commission on Employment-Based Immigration to study the employment-based immigration system and to recommend improvements. The Commission will have the power to declare an emergency in the immigration system where there are too few non-US workers available to meet economic needs or too many non-US workers being admitted leading to job displacement or wage depression. If an emergency is declared, the Commission will make recommended changes and Congress is then required to vote on enactment of the recommendations.
Authorizes recapture of immigrant visas lost to bureaucratic delays.
Clears the family immigration backlog over an eight year period. After the eight year period, family caps will return to the current levels.
Spouses and children of lawful permanent residents (LPRs) will be classified as "immediate relatives."
Allows permanent partners of US citizens and LPRs to obtain LPR status.
Registration and Legalization Plan

In the first of two phases, all undocumented persons must come forward and register their presence to be eligible for a new interim status: "Lawful Prospective Immigrant" (LPI), which permits work and international travel authorization.
Eight years after enactment, when current visa backlogs are cleared, LPIs will be permitted to petition for adjustment to LPR (or green card) status.
The proposal also provides eligibility for LPR status to certain undocumented students who graduate from US high schools, who are of good moral character and arrived in the United States as minors.