Clinton: Federal Government Will Challenge Arizona Immigration Law; Other States Contemplate Similar Laws

Secretary of State Hilary Rodham Clinton indicated in a televised June 8 interview that the Obama Administration will be suing the state of Arizona over its recently-passed immigration law (see the May 2010 issue of the Immigration eAuthority). Reports of Clinton’s comments began to surface last week. There has been no other official confirmation or denial of the statement in the Administration. Clinton heads the State Department and any such lawsuit would presumably be filed by the Justice Department, which has made no official statement. Arizona Governor Jan Brewer is reportedly stunned by the development.

As several other states are considering introducing similar laws, the federal lawsuit challenging the Arizona law would take on significant importance. A bill modeled after the Arizona law has been introduced in the Pennsylvania legislature. In addition, political leaders in states such as Texas, Georgia and Utah have indicated that they are in favor of passing similar legislation. Modeled after the Arizona law, promoters of the Nevada Immigration Verification Act are seeking to secure a sufficient number of signatures on a petition that would put the Act on the state’s 2011 ballot. If the voters approve it, the Nevada legislature would be obligated to implement the law. Legal challenges to the petition effort already have been filed by the American Civil Liberties Union (ACLU) of Nevada and by the Las Vegas Convention and Visitors Authority and Nevada Resort Association.

By way of background, Arizona’s Senate Bill 1070 (the “Support Our Law Enforcement and Safe Neighborhoods Act”) was signed into law by Governor Brewer on April 23. The most controversial feature of SB 1070 authorizes and compels law enforcement officers to verify the legal status of persons reasonably believed to be illegally present in the country. The bill is scheduled to take effect on July 28, 2010.

For employers, a federal lawsuit is primarily important for its tangential impact. A decision as to the authority of states to regulate immigration-related issues (which could include the authority of states to require employers to use the E-Verify electronic employment eligibility verification system) would be the most significant potential implication of a federal lawsuit. Even if the federal government decides not to challenge the Arizona law, there are already two lawsuits pending that challenge SB 1070.

For now, the most important thing for Arizona employers to know is that E-Verify participation is required of Arizona employers under the Legal Arizona Workers Act (see the March 2010 issue of the Immigration eAuthority for more information). The new law 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). Non-citizen foreign nationals are encouraged to carry evidence of lawful immigration status, such as a green card or a passport with a valid I-94 card inside.