Law Requires Employers to Use Flawed EEVS

New Arizona Law Requires Employers to Use Flawed Employment Eligibility Verification Basic Pilot

Immigrants’ Rights Update, Vol. 21, Issue 6, July 20, 2007

By Tyler Moran

The Legal Arizona Workers Act (HB 2779), which Gov. Janet Napolitano signed into law on July 2, requires every employer in Arizona to use the federal Basic Pilot program to verify the employment eligibility of all new hires and creates state penalties for employers who “knowingly” or “intentionally” employ undocumented non–U.S. citizens.  In a letter to Senate Majority Leader Harry Reid (D-NV) and House Speaker Nancy Pelosi (D-CA), the governor noted Congress’s failure to move on comprehensive immigration reform and stated that “one of the practical effects of this failure is that Arizona, and states across the nation, must now address this escalating problem on their own.”

The new Arizona law tracks the federal definition for what constitutes “knowing” that a worker is undocumented.  Federal law prohibits employers from knowingly hiring “unauthorized aliens” and defines an unauthorized alien as a person who is not lawfully admitted for permanent residence or who is not authorized by immigration law or the attorney general.  See 8 U.S.C. sec. 1324a.  The new law defines “intentionally” as having the objective of, or engaging in, conduct that is an offense under Arizona law.  See Arizona Revised Statutes, sec. 13-105.  (“‘Intentionally’ or ‘with the intent to’ means, with respect to a result or to conduct described by a statute defining an offense, that a person’s objective is to cause that result or to engage in that conduct.”)  Under the new law, anyone may file a complaint alleging that a business is employing undocumented noncitizens, and the state attorney or county attorney must investigate those complaints, which may include verifying with the federal government whether the workers are employment-eligible.  If the attorney general decides that the complaint is not frivolous, he or she must notify U.S. Immigration and Customs Enforcement (ICE), the local law enforcement agency, and the appropriate county attorney.

Penalties vary depending on the offense but include (1) fines; (2) the employer having to file an affidavit with the county attorney stating that a worker found to be employment-ineligible has been dismissed and that the employer will not intentionally or knowingly employ an undocumented noncitizen; (3) temporary suspension of business licenses; (4) probation; (5) quarterly reports by the employer to the county attorney on each new employee at the location where the undocumented worker performed work; and (5) permanent revocation of a business license upon a second violation during a probationary period.  Proof that an employer used the Basic Pilot to verify the status of the undocumented worker creates a rebuttable presumption that the employer did not intentionally or knowingly employ an undocumented noncitizen.  An employer who establishes that it has complied in good faith with federal requirements regarding unfair immigration-related employment practices also establishes an affirmative defense that the employer did not intentionally or knowingly employ an undocumented noncitizen.

The law also establishes an employer sanctions legislative study committee to examine and report on the following:  (1) The laws and regulations pertaining to employer sanctions in Arizona; (2) the effects of these laws and whether they are being properly implemented; (3) if they are being applied to all businesses in a fair manner; and (4) if the complaint process is being implemented in a fair and just manner.  The committee must submit a report of its findings and recommendations to the governor, the president of the Senate, and the speaker of the House before Dec. 31, 2008.

In her letter to Reid and Pelosi, Napolitano expressed concern about whether the Basic Pilot can handle the increased usage that will result from Arizona’s law, which will add approximately 140,000 new businesses to the program.  The Basic Pilot is an electronic employment eligibility verification system currently used by only about 17,000 employers nationwide, and it has been plagued by inaccurate databases and employer misuse.  For example, the database administered by the Social Security Administration, upon which the Basic Pilot relies, has 17.8 million records that contain discrepancies that could result in a person (immigrant or U.S. citizen) being wrongly identified as not authorized for employment.

The Arizona Contractors Association and Arizona Employers for Immigration Reform filed a lawsuit on July 13 in federal district court challenging the state’s authority to enforce immigration law and asking for a preliminary injunction preventing enforcement of the law, which takes effect Jan. 1, 2008.  Federal immigration law expressly preempts any state or local government from imposing employer sanctions on those “who employ, recruit, or refer for a fee unauthorized [non–U.S. citizens].”  See 8 USC §1324a(h)(2).  Thus, any local or state law, including Arizona’s, that prohibits the hiring of unauthorized workers or attempts to impose penalties on employers for hiring unauthorized workers is likely not legally enforceable.  (For more information about federal plenary and express power over immigration policy, see “Facts About Federal Preemption: How to Analyze Whether State and Local Initiatives Are an Unlawful Attempt to Enforce Federal Immigration Law or Regulate Immigration.”)

The governor has said that she will convene a special session of the Arizona legislature to address problems with the law.  Meanwhile, a group calling itself the “Legal Arizona Workers initiative drive” continues to collect signatures for a 2008 ballot initiative that would require judges to permanently revoke the business license of any business if it is convicted just one time of knowingly hiring an undocumented noncitizen.  Backers need 153,365 valid signatures on petitions by July 3, 2008, to put the measure on next year’s ballot.