Arizona: New Sweeping Immigration Law Enacted
August 3, 2007
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2007
Arizona employers soon will be required to verify every new hire’s employment eligibility through the U.S. Department of Homeland Security’s (DHS) electronic employment eligibility verification program, and will face tough new sanctions for hiring "unauthorized aliens" under a sweeping new state law that was enacted on July 2, 2007.
Basic Pilot Program Required – Beginning January 1, 2008, all Arizona employers must verify every new hire’s employment eligibility through the DHS’ Basic Pilot Program (now called the Employment Eligibility Verification Program). Basic Pilot is the government’s web-based program that enables participating companies a method to electronically verify the employment authorization of all newly hired employees, regardless of citizenship.
Prohibition Broader that Federal Law – The new Arizona state law also prohibits an employer from “knowingly” or "intentionally" employing an unauthorized alien. An employer "knowingly" employs an unauthorized alien if the employer hires the individual in violation of federal law (i.e., it has constructive knowledge that the person is an unauthorized alien). An employer "intentionally" employs an authorized alien if the employer’s objective is to: (1) cause the employment of an unauthorized alien or (2) engage in the employment of an authorized alien. Such intent is usually established by circumstantial evidence. The type of violation will determine the penalties.
Penalties for First Knowing Violation – A first knowing violation in a three-year period will result in a court order requiring the employer to (1) terminate the employment of all unauthorized aliens, (2) file quarterly reports with the county attorney on all new hires during a three-year probation period, and (3) file a signed affidavit that the employer has terminated all unauthorized aliens and will comply with the statute. The court may order a suspension of all of the employer’s licenses necessary to operate the business for up to 10 days.
Penalties for First Intentional Violation – A first intentional violation during a five-year period will result in the same penalties except that the court must suspend the employer’s licenses for a minimum of 10 days and the probation period is extended to five years.
Second Violations – If a company knowingly or intentionally hires an unauthorized alien during the probation period it will have committed a “second violation” resulting in the permanent revocation of the employer’s licenses necessary to operate the business.
Defenses – Any employer who verifies their employees through the Basic Pilot Program will enjoy a rebuttable presumption that it did not knowingly or intentionally employ an unauthorized alien. More importantly, an employer who establishes that it is in good faith compliance with I-9 requirements will have established an affirmative defense that it did not violate the new Arizona state law.
Complaint Process – Complaints of violations of the Arizona measure can be filed with the Arizona attorney general or the county attorney who will then investigate the complaint. If the investigator determines that a complaint has merit he or she must notify United States Immigration and Customs Enforcement (ICE), local law enforement, and the appropriate county attorney to bring an action in state court alleging a violation of the new law.
Bottom Line – By October 1, 2007, Arizona employers should receive notice of the new law and an explanation of its requirements.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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