labor lawAdivision of labor law center

A tough new immigration law in Arizona went into effect on January 1, 2008. Under the new law, employers who hire illegal immigrants face tough penalties.

Under the new law, employers who knowingly or intentionally hire illegal immigrants face loss of their business license. The law requires that employers use the federal I-9 form, and retain copies of supporting documents. It also requires that every employer use the free E-verify system through the U.S. Department of Homeland Security. That system checks worker’s documents against Social Security and DMV records, to weed out forgeries.

While there is talk of pro-immigration groups filing a lawsuit to halt the implementation of the new Arizona immigration law, no such action has been filed. Employers are legally obligated to follow the law at this point.

Hiring undocumented immigrants has long been illegal. In 1982, the federal Immigration Reform and Control Act transferred the burden of enforcement onto employers. Under that law, every U.S. employer must check documents to prove that an applicant may legally work in this country. Employers are required to keep the supporting documents – the I-9 form – on file for 3 years after the worker is hired. When a worker is terminated within that period, the employer is required to keep the supporting documentation on file for one year after termination.

The Department of Homeland Security recently released a new I-9 form. Effective December 26, 2007, any employer who uses the old for can face fines. However, employers are not required to re-certify employees who used the old form in the past.

Under the existing federal laws, employers face fines of up to $200,000 for knowingly hiring illegal aliens. Employers are required to examine the supporting documents for the I-9. However, a loophole in the federal law permits employers to not make copies of the supporting documents for the I-9. This makes it possible for a supervisor or manager to hire a friend, without supporting  documents.

While the federal law levies hefty fines against offenders, a new Arizona law would shut down the business forever, if illegal aliens are hired.

By contrast, a controversial law in Illinois would make it easier for employers to hire undocumented workers. In that case, the Department of Homeland Security is suing the state, to prevent implementation of the new law.

The new Arizona law takes the penalties for hiring illegal aliens even further. Under the Employer-sanctions law, businesses that hire an illegal alien will face a 10-day suspension of their business license. A second violation will result in a permanent suspension of the business license.

According to some sources, the Arizona law was already resulting in “self deportations” before it went into effect. According to prominent members of the Arizona immigrant community, number of illegal immigrants had already left the state before the law went into effect. The tough new law, combined with an economic slow-down, makes it almost impossible for undocumented workers to find jobs. Proponents of the law say that’s exactly its purpose.

“The broke the law,” says State Representative Russell Pearce of Mesa. “They’re criminals.”  Pearce sponsored the employer sanctions law specifically to drive illegal immigrants out of the state. He is using the issue as a platform to launch an exploratory campaign for the U.S. Senate.

The Employer Sanctions law was approved by voters to reduce economic opportunities for undocumented workers. Supports hope it will decrease the flow of illegal immigrants into Arizona, reportedly the busiest crossing point along the border between the U.S. and Mexico.

Some authorities point out that the law may have adverse effects even on Hispanic immigrants who can legally work in the U.S. “Workers are being fired, of course,” says Nancy-Jo Merritt, an immigration lawyer. “Nobody wants to find out later on that they’ve got somebody working for them who’s not here legally.”

This puts Arizona employers in a tough position, legally. It’s against the law to discriminate against an applicant simply because he or she is from Mexico, speaks with an accent or is Hispanic. That’s because Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national ancestry, as well as religion and sex. However, employers who hire illegal immigrants face the risk of losing their business.

The exodus of undocumented workers is positive, according to Rep. Pearce. “Americans will be much better off.” He contends. “it’s attrition by enforcement. As you make this an unfriendly state for lawbreakers, I’m hoping they will pick up and leave.” Pearce believes that there will be less crime, lower taxes, less congestion, smaller classrooms and shorter lines in emergency rooms due to the law.

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1. Posted by: Colorado Minimum Wage Now $7.02 - Labor Law Center Blog

   […] As of January 1, 2008, any Arizona employer who knowingly or willingly hires illegal aliens will face tougher sanctions. Rather than being fined, an employer can actually be shut down. The first violation of this law garners the business a 10 day suspension of its license. A second violation results in the employer permanently losing its business license. […]