Federal Government Lawsuit Challenging Arizona Law – Update

On July 6, the U.S. Department of Justice (DOJ) filed a lawsuit challenging the constitutionality of Arizona’s controversial new immigration law, known as SB 1070. The DOJ argued that the law interferes with the federal government’s authority to set and enforce immigration policy. The DOJ further commented in a press release that “A patchwork of state and local policies would seriously disrupt federal immigration enforcement.”

The DOJ suit requests preliminary injunction to prevent implementation of the law. However, as of this writing, there has been no judicial intervention to prevent SB 1070 from becoming effective on July 29, 2010 whether by virtue of the DOJ suit or one of the other six lawsuits filed contesting the validity of the law.

For now, it is important for Arizona employers to know that, without regard to the new DOJ lawsuit, E-Verify participation is required of Arizona employers under the previously enacted Legal Arizona Workers Act (LAWA). (For more information, see the March 2010 issue of the Immigration eAuthority). LAWA was previously challenged in a separate lawsuit and the U.S. Supreme Court agreed in late June to review the law’s constitutionality. The Supreme Court’s decision in the LAWA case has even greater importance for Arizona employers as it could invalidate the E-Verify requirement altogether. It could also invalidate similar E-Verify laws in Mississippi, South Carolina and Utah.

SB 1070 has one significant change for most employers, namely that employers must retain E-Verify verification records for the duration of a worker’s employment or three years (whichever is longer). Employers are encouraged to retain such records, without regard to the outcome of the current lawsuit. For employees, non-citizen foreign nationals are encouraged to carry evidence of lawful immigration status (such as a green card or passport with a valid I-94 card inside).