News Update - August 1, 2009

By Alan Lee, Esq.^†‡

Legal Arizona Worker Act Illustrates Struggle between State and Federal Regulation of Employer-Immigrant Issues

A gray area in federal and state regulations of businesses has played out as a source of controversy in Arizona, where a law in place allows the state to punish employers who are found guilty of knowingly hiring illegal workers. The Legal Arizona Worker Act, passed in 2007, allows a judge to suspend the license of any guilty firm for its first offense. A second offense in three can disband the business.

The nation’s largest business group is currently lobbying for this law to be removed. Attorney Carter Phillips hired by the U.S. Chamber of Commerce for the Arizona business groups and Hispanic rights organization argues that the state was not entitled to pass such a law in the first place. The 1986 Immigration Reform and Control Act specifically disallows states and cities to impose civil or criminal penalties on companies based on hiring practices. The same act, however, allows states to have their own “licensing or similar laws,” which enabled Arizona to pass the Legal Arizona Working Act. Mr. Phillips states that these laws are in place in order to impose sanctions “based on true licensing laws that require proper qualifications.” Even in that case, he contends, the company would have to be found guilty in a federal court before the state can revoke its license.

The gray area presented here has arguably set a precedent. Although no companies have been charged in Arizona with violating this act, the fact that it is in place could have empowered other states to pass employment immigration-related bills of their own. According to Phillips, 40 such bills have been enacted in 28 states since 2007. Furthermore, in the first three months of 2009 alone, over 1000 immigration-related bills and resolutions were introduced in all 50 states.

† The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

‡ This article © 2009 Alan Lee, Esq.

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