Arizona Legal Workers Act Survives First Challenge

Just hours ago, Judge Neil Wake of the U.S. District Court for the District of Arizona denied a temporary restraining order seeking to block enforcement of the Arizona Legal Workers Act. For now, it appears that Arizona’s sweeping new law aimed at stopping the employment of unauthorized workers in Arizona will take effect as scheduled on January 1, 2008. The Act, which allows for suspension and revocation of licenses of businesses that knowingly employ unauthorized workers, has been discussed in detail in prior Ogletree Deakins client alerts.

Judge Wake previously dismissed a challenge to the law because the plaintiffs failed to name the proper defendants. Today, he reiterated that the plaintiffs’ delay in naming the proper parties was a basis for his decision. The plaintiffs have appealed the previous dismissal of their complaint to the Ninth Circuit Court of Appeals and also asked Judge Wake on Tuesday for an injunction while the appeal is pending, which he denied today. Judge Wake cited statements by Arizona County Attorneys that they would not take legal action against any Arizona employers until after February 1, 2008 as a further basis for his ruling. It is important to note, however, that the County Attorneys were explicit during Tuesday’s hearing before the Court that they can and likely will begin investigating complaints filed pursuant to the law beginning in early January.

Given today’s developments and the County Attorneys’ statements, Arizona businesses should prepare for the new law to take effect as scheduled on January 1, 2008. To that end, it is important that you familiarize yourselves and your managers with the E-Verify system and conduct an audit of all I-9 forms.

E-Verify is a free program that allows employers to electronically check the name and identification number of new hires to verify that they are authorized to work in the United States. The E-Verify program is jointly administered by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services Bureau (USCIS) and the Social Security Administration (SSA). Employers may enroll in the E-Verify program on-line at http://www.vis-dhs.com/employerregistration. At the time of registration, employers must accept an electronic Memorandum of Understanding which requires the employer to make several promises to both the DHS and the SSA.

Ogletree Deakins previously prepared and distributed written materials explaining the specific requirements of the Act, as well as instructions on how to enroll in the E-Verify program. If you would like to receive a copy of those materials, or would like further assistance on compliance with the Act, please contact Kerry Martin at (602) 778-3715 or Scott Blaney at (602) 778-3705. If you have other immigration-related questions, please contact Jay Ruby in our Immigration Practice Group, or contact our Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the December 2007 issue of the Arizona eAuthority.