Uptick in State Immigration Laws May Force Congress to Act, Speakers Say

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The increase in state immigration measures may lead to conflicting laws that ultimately force the federal government to pass national immigration legislation, speakers said July 19 at a conference sponsored by ImmigrationWorks USA, a group representing businesses that support passage of a comprehensive immigration bill.

States need to enact a variety of contradictory immigration laws—from E-Verify mandates to laws relating to state and local police involvement in immigration matters—to “create the crisis that makes Congress act,” said Indiana Attorney General Greg Zoeller (R).

Due to federal inaction and a U.S. Supreme Court decision upholding Arizona's E-Verify mandate, more and more states are enacting immigration measures, according to an ImmigrationWorks USA report released the same day.

It is “failed federal policies that led Utah to act,” on a series of immigration bills, said Curt Bramble (R), a Utah state senator.

If Congress believes the states should not take the lead on immigration, federal lawmakers “must step up,” because the “unfunded mandate that immigration has become to the states is approaching a tipping point,” Bramble said.

“States are saying that they can no longer live with the status quo,” Bramble said.

Whiting Opened Door for State E-Verify Bills.

In May the U.S. Supreme Court upheld the Legal Arizona Workers Act, a law that allows the state to revoke the business licenses of employers that knowingly hire illegal immigrants and requires employers in the state to use E-Verify (Chamber of Commerce v. Whiting, U.S., No. 09-115, 5/26/11; (62 BTM 169, 5/31/11).

Because the Supreme Court upheld a state E-Verify law, “virtually every state with any interest in this will likely now mandate E-Verify,” said Carter Phillips, managing partner at Sidley Austin LLP in Washington, D.C.

“At a minimum, the result of the Whiting case is that the court has found a role for states,” in the area of immigration, Phillips said. For many years the courts held that immigration was a matter for the federal government, but now that is starting to change, he said.

Zoeller said the Whiting decision gave Indiana lawmakers a roadmap to follow when they enacted an E-Verify mandate.

“The case showed us an area where states can play a role in immigration policy,” he said.

In May Indiana Gov. Mitch Daniels (R) signed into law S.B. 590, a bill requiring agencies and political subdivisions with public contracts with state services, as well as some subcontractors, to use the E-Verify system (62 BTM 159, 5/17/11).

Uptick in State Legislation

Lawmakers across the United States “continue to take matters into their own hands,” with eight states enacting new E-Verify mandates since January, according to an ImmigrationWorks USA report.

Alabama, Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, and Virginia all enacted E-Verify legislation mandating use of the federal program by some or all of the employers in the state.

In addition, Florida in May updated a Jan. 4, 2011, executive order that requires employers that are contractors with state agencies to use E-Verify.

Overall, 17 states currently mandate E-Verify use in some capacity, ImmigrationWorks USA said.

According to the report, the Whiting decision makes passing an E-Verify mandate a “risk-free step for politicians seeking to get tough on illegal immigration.”

Bramble admitted that it may be difficult for national companies to deal with conflicting state E-Verify laws or other immigration measures, but said that those conflicts will “lead to a tipping point,” where Congress “has no choice” but to act to pass national immigration legislation.

The “ultimate goal is not 50 separate state laws,” Utah Attorney General Mark Shurtleff (R) said. Instead, the federal government needs to “step up and take action,” on an immigration overhaul, he said.

Mark Gerstle, the vice president of Cummins Inc., an engine manufacturer headquartered in Columbus, Ind., said large companies face challenges because of conflicting state immigration laws.

All employers can do at this point is keep a close watch on state laws and “hope states don't pass conflicting measures,” he said.

In addition, Gerstle said it is important for companies to have “good immigration lawyers,” because state law conflicts can be “a mess.”

‘Reasonable' Debates Emerging

The ImmigrationWorks USA report points out that a new trend in the area of immigration policy is the willingness of businesses to take a stand against measures that would hurt employers.

“The debate is changing in the states,” with “a new set of voices emerging—Republicans and business leaders calling for pragmatism and more sensible law,” ImmigrationWorks USA said.

The report points to efforts by businesses over the past year in Utah, Arizona, Kansas, and Tennessee to “make the case that immigration is good for the state economy,” and create space for state lawmakers to “vote differently than they had in the past.”

“Hopefully the states are moving in the right direction toward a more reasonable debate on immigration,” Gerstle said. “American companies need to be competitive in global markets,” and that often requires states to adopt a “welcoming” approach to immigrant workers, he said.

Cummins has added engineers to its operations in Indiana, after for some time considering adding the positions in China, Gerstle said. These jobs were placed in Indiana because the company saw a “welcome state to do business,” that is not hostile to immigrant workers when they are necessary, he said.

Congress Also Considering Issue

While states are deciding whether or not to pass E-Verify mandates, the U.S. Congress is also contemplating the issue.

House Judiciary Committee Chairman Lamar Smith (R-Texas) introduced a bill, the Legal Workforce Act (H.R. 2164), that would mandate E-Verify use for all new hires by U.S. employers and would preempt state E-Verify laws.

According to Shurtleff, there “probably ought to be a national E-Verify mandate so that employers don't have so many different rules to comply with,” but such a mandate needs to be coupled with a way for employers to legally obtain the workers they need.

This year the Utah state legislature passed several immigration measures—including creating a guestworker program in the state and imposing requirements on employers to verify the legal status of their workers. Shurtleff said it was important to pass both programs so employers have the labor they need.

Bramble agreed, arguing that “legislative fiat rarely works to stem demand in the marketplace,” so any E-Verify mandate should be coupled with a “way to fill those jobs” that currently are held by illegal immigrants.

The ImmigrationWorks USA report may be accessed at http://op.bna.com/dlrcases.nsf/r?Open=amky-8jwt5p .