On Friday, December 7, 2007, U.S. District Court Judge Neil V. Wake dismissed the consolidated lawsuit brought by various business and civic associations and non-profit corporations challenging the “Legal Arizona Workers Act,” Arizona’s new employer sanctions/immigration law. In his ruling, Judge Wake said that the plaintiffs who challenged the new law had sued the wrong parties. Rather than sue the 15 County Attorneys — who are charged with enforcing the new law — the plaintiffs brought their lawsuit against the Director of the Arizona Department of Revenue, Arizona Attorney General Terry Goddard, and Arizona Governor Janet Napolitano. In his 25-page decision, Judge Wake wrote: “This action must be dismissed without prejudice…there being no justiciable case or controversy against the defendants.”

Judge Wake also questioned whether the plaintiffs had grounds to bring the lawsuit because none of them admitted that they employ unauthorized workers and, therefore, do not face a threat of imminent prosecution under the Act. The plaintiffs may appeal Judge Wake’s decision to the Ninth Circuit Court of Appeals and/or file a new lawsuit naming the 15 county attorneys as defendants. Some of the plaintiffs have indicated that they may file a new lawsuit as early as today.

While a new lawsuit correcting the procedural flaws pointed out in Judge Wake’s order may ultimately prove successful, for now this ruling clears the way for the Act to take effect on January 1, 2008. The Act gives superior courts the power to suspend or revoke the business licenses of employers who are found to have knowingly or intentionally employed unauthorized workers after December 31, 2007. Although questions regarding how the Act will be enforced remain unanswered, Judge Wake made it clear in his decision that Arizona employers must participate in the E-Verify program or run the risk of losing the good-faith defense and face suspension or loss of business licenses. Judge Wake explained that “[b]ecause Arizona requires employers to use E-Verify, the Act may be read to charge employers with knowledge of the E-Verify data that they wrongfully refuse to obtain, just as the Memorandum of Understanding charges E-Verify users with knowledge of the data for federal enforcement purposes.”

E-Verify is a free program that allows employers to electronically check the names and identification numbers 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 https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES. 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 Erica Rocush at (520) 575-7443. 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 10, 2007 issue of the Arizona eAuthority.

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