Although Barack Obama campaigned on a platform that included comprehensive immigration reform, his administration has put other legislative initiatives at the forefront. While Congress focused on health care reform, financial services reform and the economy, immigration reform stalled.
Meanwhile, faced with a rising tide of illegal immigrants and lax enforcement of existing federal laws, border states are stepping in to fill the gap by passing laws to take the matter into their own hands. No state's efforts have received more attention than Arizona's.
The Grand Canyon State has passed a variety of controversial measures, including a 2007 law that requires employers to sign up for the federal E-Verify program to ensure that workers are legal, and a 2010 law that, among other things, criminalizes working in the state without legal authorization.
That last measure drew a huge outcry from immigrant rights groups and got the federal government interested. The Justice Department sued to enjoin portions of the statute, S.B. 1070, arguing that the federal government has exclusive authority to regulate immigration. The Federal District Court for the District of Arizona agreed in July and enjoined the state from enforcing many parts of the law, including the provisions criminalizing transportation or harboring of undocumented people, criminalizing the failure to carry immigration documents, and criminalizing the solicitation of, applying for, or performing work without legal immigration status. The case, U.S. v. Arizona, is now before the 9th Circuit, which will decide whether to uphold the injunction, and rule on the survival of the law.
At the same time, the Supreme Court granted certiorari on U.S. Chamber of Commerce v. Whiting. The high court will decide whether the 2007 Arizona law that sanctions employers who knowingly hire unauthorized workers will survive a preemption challenge. The pending challenges to Arizona's laws highlight the disarray of immigration law on a national level.
"There is a seething pressure that is going to reach a boiling point," says Elena Park, a member at Cozen O'Connor. "States and localities are frustrated, and there is a lot of resentment with the perceived lack of federal enforcement."
In U.S. v. Arizona, the federal government's main challenge to
S.B. 1070 is pre-emption--contending that immigration policy is the exclusive province of the federal government.
In September, the same argument succeeded before the
3rd Circuit in Lozano v. Hazleton. There, the court sustained a challenge to a local law that made it illegal for any business to "recruit, hire for employment, or continue to employ" any person who is an "unlawful worker" within the city of Hazleton, Pa.
Many observers think parts of S.B. 1070 are likely to meet the same fate. "The court asked tough questions of both sides," says Kim Thompson, a partner at Fisher & Phillips. "But it appears to be leaning toward telling Arizona that it is overstepping its bounds."
But because there is a severability clause, some aspects of the Arizona law are likely to survive, including the provision that creates a new crime for stopping a motor vehicle to pick up a day laborer and the portion that allows citizens to sue the state government if it interferes with enforcement of immigration laws.
In U.S. Chamber of Commerce v. Whiting, the Supreme Court will consider whether an Arizona law that requires employers to check the immigration status of job applicants through the federal E-Verify database and revokes the business license of companies that hire undocumented workers is pre-empted. The U.S. Chamber sued to enjoin that law, arguing that it placed undue burdens on business. That law, according to experts, has better prospects than S.B. 1070.
"The federal government favors use of E-Verify," Thompson points out. "But perhaps there will be some limits on employer sanctions."
At least six states have passed laws that mirror S.B. 1070--South Carolina, Minnesota, Rhode Island, Pennsylvania, Michigan and Mississippi.
As a result, an employer with a national business is subject to a patchwork of conflicting requirements. Nevada, for example, allows an employer to assert use of the federal Social Security Number Verification System (SSNVS) as an affirmative defense against allegations that it intentionally hired an undocumented worker. The problem is that the SSNVS is explicitly designed only for reporting wages, not for employment verification.
"Now just as employers have to deal with local variations of wage and hour provisions, they must also apply a series of convoluted state immigration provisions that many times have not been properly analyzed before enactment, thereby making it very difficult to determine a proper national policy," says Jorge Lopez, a shareholder at Littler Mendelson.
Worse still is that the overlapping laws can lead to overlapping immigration investigations and fines.
For example, under South Carolina law, the state's Department of Labor enforces a law that requires employers to verify applicants' status either by using E-Verify or by requiring a South Carolina ID card. If the department uncovers a violation, it will report that to the federal government. That can trigger a federal investigation.
"It's double jeopardy," Thompson says. "An employer can get fined two times for the same violation."
Indeed, despite the lack of legislative initiatives from Congress, federal regulators have maintained a strong focus on enforcement and audits. In a 2009 press release, the Department of Homeland Security's Immigration and Customs Enforcement (ICE) announced a campaign of auditing I-9 forms and in short order audited 1,000 employers. In September 2010, 500 more companies received notice that their paperwork would be subject to inspection.
"Under President Obama we're seeing fewer massive raids but more targeted, focused scrutiny of employers suspected of using undocumented workers to increase their bottom line," Park says.
After one such audit in September 2010, clothing retailer Abercrombie & Fitch agreed to pay more than $1 million in fines, despite the fact that ICE didn't find a single knowing violation of the immigration laws. Every uncorrected I-9 form carries a penalty of $110 to $1,100, which can add up quickly.
With Republicans taking control of the U.S. House this month, federal legislation aimed at even tougher enforcement may emerge from Congress.
"Congressmen Lamar Smith and Steve King, who will become the leaders of the House Judiciary Committee Subcommittee on Immigration, have a very strong enforcement-only agenda," Park says. "Congress will eventually have to act, but in the meantime, we will see increased audits and investigations."