State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 12, April 2008
In this Issue:
Behind the Headlines
New Bills
Local Legislation
IRLI Tip of the Month
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Behind the Headlines
New Haven, Connecticut Municipal ID Card Litigation
Illegal aliens try to keep their personal identity information private to improve their ability to live and work in the U.S. without authorization, and fuel a national black market in fraudulent documents and false identities. While many aliens attempt to acquire new false identities, alien advocates are also pursuing a strategy of urging sympathetic state and local governments to recognize a universal "right to privacy" under which immigration status information is designated an "intimate personal matter" similar to sexual practices or medical history, or alternatively that its release is a civil rights abuse equivalent to racial profiling.
A new and disturbing legal development in the alien "privacy rights" movement is the issuance of local identity cards to illegal aliens by municipalities that are politically hostile to federal immigration law enforcement. In 2007, the city of New Haven, Connecticut, became the first in the nation to offer an "Elm City ID Card" to illegal alien "residents" of the City. The card includes various biometric and standard identifiers, and even offers a city-sponsored cash card feature, and can be used for identification, eligibility for services reserved to city residents, and small cash payments at all City facilities and several dozen city businesses. Other agencies, such as the commuter railroad connecting New Haven to New York City, are also reported to be accepting the card.
Applicants must prove their identity and residence by presenting documents from an approved list. However, the list has been criticized by security experts because it includes many insecure and easily forged foreign documents, including consular ID cards, foreign birth certificates, foreign government ID cards, and even ITIN nonresident tax ID numbers.
The city initially planned to issue the cards only to "mmigrants" who lacked any U.S. identification documents, but expanded eligibility to all city "residents" in order to reduce political opposition and liability for discrimination. Implementation of the card program was highly controversial.
After the program was approved by the Board of Aldermen in June 2007, local immigration reform activists filed a state freedom of information request, seeking copies of the applications and related documents. The City refused to disclose the documents, and an appeal is now being adjudicated by the State Freedom of Information Commission (Powell v. New Haven and Gold v. New Haven).
The Connecticut state version of the Freedom of Information Act is considered one of the strongest pro-disclosure statutes in the nation. At the federal level, only citizens and legal resident aliens are protected by the Freedom of Information Act, and the general trend in appellate case-law is that illegal aliens do not have a reasonable expectation of privacy in their immigration status.
Nonetheless, advised by faculty members at Yale Law School, the City has claimed that disclosure of the information would constitute an invasion of privacy of the applicants, and more ominously, that local civic groups promoting increased cooperation between local police and federal immigration officers have conspired with "hate groups" to encourage vigilante violence against cardholders whose identities might be revealed.
Because Connecticut FOIA decisions are influential nationally, both sides see the administrative appeals as cases of national significance. San Francisco has said that it is basing a similar federal law resistance initiative on the New Haven model. IRLI is assisting one complainant, the Community Watchdog Project, to present its case.
Update on OK HB 1804 Lawsuit
The newest lawsuit challenging the OK HB 1804 was filed in January. To recap, this lawsuit was brought by an Oklahoma taxpayer challenging enforcement of the bill as an illegal expenditure of funds. The Plaintiff alleges that creating all these new laws and tasks for public entities is an illegal use of public funds. Also, the plaintiffs claim that creating these new laws and delegating legislative authority to public entities without creating specific standards violates the Oklahoma Constitution (see Petition for further details ).
Plaintiffs filed a Motion for Summary Judgment (no genuine issues of material fact exist) in the latest quest to halt implementation of OK HB 1804 (see May Legislation Bulletin for details on bill).
The Importance of Preemption Review for State and Local Bills
The 2008 spring legislative season produced both a record number of state and immigration-related bills, and an all-time high number of failed bills and, of greater concern, bills enacted with constitutional flaws. These legislative failures give opponents of true enforcement excuses to attack the entire attrition by enforcement concept. Specialized legal review to spot and amend language which may inadvertently create conflicts with federal immigration law is essential, as the following brief examples indicate :
Alabama SB 426 SB 426 was introduced in late February. Initially, this bill provided that monetary sanctions shall be imposed on companies that employ unauthorized aliens (see June Legislation Bulletin for more information on why this tactic is impermissible) . Another error included providing which documents shall be acceptable to prove citizenship requirements. This provision violates the federal I-9 requirements since various documents are acceptable to prove an individual is authorized to work in this country.
Indiana SB 335 SB 335 died in committee mid-March (see article for further details). SB 335 mandated that illegal aliens shall not be eligible for public benefits, that a 287(g) agreement shall be entered into with the Immigration and Customs Enforcement (ICE) and that the employment of illegal aliens shall be unlawful.
Kansas SB 458 SB 468 was introduced by Senator Palmer in January. Major changes were made to this bill upon approval by the Senator (see article). Originally, the introduced bill mandated that all employers shall enroll and utilize the E-Verify program to check the citizenship status of employees. However, after caving in to the pressure by surrounding businesses, the watered down version finally approved does not make enrollment in E-Verify mandatory, but only voluntary.
Minnesota HB 4011/SF 3082 HB 4011 was introduced in the middle of March and provides that the state licensing agencies may impose fines against companies that are determined to be knowingly employing unauthorized aliens. The imposition of direct civil sanctions against employers for hiring or employing unauthorized aliens is expressly preempted by the Immigration Reform and Control Act. See 8 USC 1324a(h)(2) (see June Legislation Bulletin for further details).
Mississippi SB 2988 SB 2988 (see article) prohibits employers from hiring unauthorized aliens. The Governor signed this into law on March 17, 2008. Mandating the use of E-Verify program for all employers within the state is much needed. Also, condemning discriminatory practices that occur when an employer fires a lawful worker in favor of an unauthorized worker is another step in the right direction. However, IRLI believes that this bill contains fatally flawed language because it imposes criminal and civil sanctions upon companies for employing unauthorized aliens (see June Legislation Bulletin for details on this preempted action).
Utah HB 262 The Governor of Utah signed HB 262 which provides that the federal government shall reimburse the state for all costs incurred relating to illegal immigration (see article) . States have brought suit against the federal government seeking reimbursement for the costs incurred because of illegal immigration. However, courts have consistently dismissed these cases as non-justiciable political questions (or better left up to the political branches of government to decide) and that there is no federal mandate for states to spend these funds.
Virginia SB 609/HB 926/HB 1298 Although more than 100 enforcement-related measures were introduced in Richmond this year, only SB 609, HB 926, and HB 1298 were signed into law by Governor Kaine.
SB 609 requires a correctional facility officer to inquire into an inmate's immigration status. An inquiry shall then be made to the Law Enforcement Support Center of the United States Immigration and Customs Enforcement (ICE) and the information shall be shared with the Central Criminal Records Exchange.
HB 926 provides that any corporation that has been convicted of employing unauthorized aliens will have their certificate or incorporation may be revoked.
HB 1298 requires that a contractor shall not be permitted to enter into a contract with a public body if they knowingly employ unauthorized aliens.
IRLI believes that it is imperative for Virginia (and other states) to enact legislation to target illegal immigration. However if the language in the final product has been watered down to appease certain lobbying groups, the legislation might lose its effectiveness in targeting the core illegal immigration problem.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
New Bills
Alabama HB 720 HB 720 was introduced in mid-March. This bill prohibits illegal aliens from receiving public benefits. HB 720 also provides that an individual's lawful status will be checked when confined for committing a felony. In addition, the firing of a lawful worker while employing an unauthorized alien shall be deemed to be a discriminatory practice under this new bill.
California AB 2601 AB 2601(see article) discontinues funding for sanctuary cities and places those funds into an account for law enforcement training. IRLI believes it is imperative to deter cities from becoming sanctuary cities for illegal aliens (for further details on sanctuary cities see December Legislation Bulletin).
Idaho SB 1513 SB 1513 was introduced in late March. Mimicking the language adopted in Arizona HB 2779 (the nation's toughest bill to revoke a company's license for employing unauthorized aliens), SB 1513 targets scofflaw employers. In addition, all Idaho agencies shall verify the lawful status of employees utilizing the E-Verify program.
Idaho SB 1513 SB 1513 was introduced in late March. Mimicking the language adopted in Arizona HB 2779 (the nationŐs toughest bill to revoke a companyŐs license for employing unauthorized aliens), SB 1513 targets scofflaw employers. In addition, all Idaho agencies shall verify the lawful status of employees utilizing the E-Verify program.
Louisiana HB 24/HB 25/HB 26 HB 24 provides that harboring, sheltering or concealing an illegal alien subjects an individual to $1000 in fines and up to one year in prison. LA HB 25 mandates that a person's citizenship status shall be verified upon arrest. HB 26 deems the transportation of illegal aliens to be a crime punishable by either a fine of not more than $1000 or one year in jail. All of these bills contain model language utilized in OK HB 1804.
Minnesota SF 3173 SF3173 provides that upon conviction of a felony an inmate's citizenship status shall be verified. IRLI believes that while the premise of this bill targets a permissible area of illegal immigration, the method for identification is flawed. SF 3173 requires the sheriff or officer in charge to verify an inmate's status using the federal electronic verification system. However, the SAVE (systematic alien verification for entitlement) program is only applicable when a person's status is checked before receiving public benefits. Alternatively, the other federal verification program is E-Verify, which is utilized to check an employee's lawful status. Neither of these verification systems is appropriate for the suggested use. The language in this bill should be amended to provide that if citizenship status cannot be demonstrated by the documents in possession of the inmate, verification should be made through the Law Enforcement Support Center of the Department of Homeland Security.
New Jersey S 1312 S1312 prohibits the employment of unauthorized aliens. After investigation of a non-frivolous complaint, the Attorney General determines the employer is in fact violating this law, then the business license of the employer shall be suspended and the company shall be on probation. The text in this bill is modeled after Arizona HB 2779, or the toughest employer sanctions law in the country (see the July Legislation Bulletin for further details).
Rhode Island H 7752 HB 7752 was introduced in late February and addresses counterfeit documentation by illegal aliens. Forging or altering documents for illegal aliens shall subject a person to punishment for a felony.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
Local Legislation
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
Fraud/Discriminatory Practices — H1B Work Visas
IRLI Tip of the Month:
States have introduced legislation to initiate their own visa program, caving in to intensive lobbying pressure by employers (e.g. Arizona seeks its own temporary worker program). However, if this legislation is remotely similar to the model of the current federal visa program, it will encourage rampant employer abuse of the process (see federal visa program discussion below).
Presently, the federal H1B visa system is flawed. H1B visas are valid for up to six years. This particular visa is designed to be used for "specialty occupations" or those that require specialized knowledge, and generally an H1B candidate must at least have a bachelor's degree. Although it appears that this program would be highly beneficial to American companies, the current H1B visa system is fraught with loopholes, which companies can and do exploit for financial gain. This program is riddled with fraud and abuse because the program provides a major incentive to utilize this system, yet there is no regulatory oversight to ensure compliance.
Companies can pay dramatically lower wages to these visa workers. H1B workers only receive the "prevailing" wage, which is far below a "market" wage or the median U.S. wage for the same job. Since these companies seek to maximize a profit advantage, it is probable that most companies will seek to utilize this program to expend less money on their employees. Not only are American workers being displaced and laid off in favor of H1B workers, but this practice is driving down the wages (see FAIR web site for further details).
Debunking a common fable — companies need not demonstrate that there is in fact a shortage of U.S. workers in order to obtain one of these visas. Because a company need not demonstrate the validity of this contention, it is highly probable that companies simply make these claims to evoke sympathy and support from the public. No oversight essentially means the allegation is presumed to be valid.
In addition, a company only need make an assertion that they have tried to locate and hire a U.S. citizen worker before applying for a foreign worker. No government agency verifies that the company has indeed attempted to hire a U.S. worker before resorting to this tactic. Even if a company does comport with this mandate, many just simply go through the motions of interviewing American workers. Firms have been reaping the benefits of this loophole by instructing companies how to technically comply with the law, but ensure no eligible Americans are hired for the position. And again, the claim is assumed to have merit.
As one could predict, this process and the companies that utilize this source often file fraudulent claims. Not only are U.S. workers being harmed by these abuses, but the H1B workers are exploited by this process as well. IRLI represents U.S. workers and H1B workers that have been harmed because a company fraudulently seeks to increase its profits, regardless of the costs. Contact IRLI if you have any questions or if you have been wronged by this type of fraud or discrimination.