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Labor & Employment

Monday, September 10, 2012

Immigration Update: Arizona’s Lasting Impact


The effects of the U.S. Supreme Court’s ruling in Arizona v. United States are being felt in Alabama, where the U.S. Court of Appeals for the Eleventh Circuit Aug. 20 reached a mixed decision striking down and upholding various portions of the state’s immigration law.

Alabama’s H.B. 56 has been seen as going farther that Arizona’s S.B. 1070 in cracking down on illegal immigration. But following the Supreme Court’s lead, the Eleventh Circuit—which had been waiting for the Arizona decision before it ruled on H.B. 56—found a chunk of the statute preempted by federal immigration law.

The employment provisions are a no-go: Alabama can’t make it a crime for an alien unauthorized to work in the United States to apply for, solicit, or perform work in the state. It also can’t bar employers from deducting compensation paid to undocumented workers as businesses expenses on their state tax filings, and it can’t create a civil cause of action where an employer fires or fails to hire a U.S. worker while employing an undocumented worker.

Other parts of the law also were struck down, including a provision requiring schools to collect data on students' immigration status.

On the other hand, in addition to a provision allowing police officers to check immigrants’ status, the appeals court let stand a provision criminalizing an undocumented immigrant’s attempt to obtain a business, commercial, or professional license.

The licensing issue currently is drawing attention in California and Florida, where two undocumented immigrants are pushing for law licenses. California applicant Sergio Garcia recently garnered the backing of the state legislature, which passed a resolution supporting his bar admission. The Florida Bar also supported Jose Godinez-Samperio's bid for a law license--the Florida Supreme Court just announced that it will hear oral arguments Oct. 2.

In Other Developments:

  • The Republican Party added language to its 2012 platform that says it will consider a new guestworker program, on top of calling for nationwide mandatory E-Verify and incentives to retain foreign students with STEM degrees. On the other hand, the GOP wants to end the Obama administration’s deferred action for childhood arrivals and prosecutorial discretion policies—which the party calls “backdoor amnesty” for illegal aliens—and federal lawsuits against state immigration enforcement laws.
  • A federal judge Aug. 20 validated the Labor Department’s 2011 H-2B wage rule, setting the stage for it to take effect Oct. 1. The rule has been on hold because of a law barring its funding during fiscal year 2012, which ends Sept. 30. Judge Legrome Davis of the U.S. District Court for the Eastern District of Pennsylvania said DOL was authorized to issue the rule and didn’t run afoul of the Administrative Procedure Act.
  • U.S. Citizenship and Immigration Services is extending the comment period for its proposed Form I-9 revisions until Sept. 21, while urging employers to continue using the old form despite its Aug. 31 expiration date. Proposed changes include expanded instructions and new layout; new, optional data fields to collect the employee's email address and telephone number; and new data fields to collect the foreign passport number and country of issuance for work authorized aliens who have recorded their I-94 admission number on the I-9.
  • The India-based company Infosys claimed a legal victory Aug. 20 when a federal court in Alabama shot down the state-law claims of Jack “Jay” Palmer, who asserted that he was retaliated against after exposing visa fraud. Palmer claimed that Infosys illegally was using B-1 business visas to employ foreign nationals in the United States. The court ruled only on Palmer’s retaliation allegations and not whether Infosys is breaking immigration laws. A second employee recently made similar claims and has a case pending in federal court in California.
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