New Alabama Law Regarding Illegal Immigration Signed by Governor

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act, House Bill 56, was signed into law on June 9, 2011, by Governor Robert Bentley. Intended to address many problems of illegal immigration, sections of the law:

• Require business entities or employers seeking economic incentives to verify the employment eligibility of their employees with E-Verify (Section 9);
• Criminalize certain behavior relating to concealing, harboring, shielding, or attempting to conceal, harbor, or shield unauthorized aliens (Section 13);
• Prohibit a business entity, employer, or public employer from knowingly employing an unauthorized alien and requiring use of E-Verify (Section 15);
• Prohibit employers from deducting certain business expenses, including any “wage, compensation, whether in money or in kind or in services, or remuneration of any kind for the performance of services paid to an unauthorized alien” (Section 16);
• Make it a discriminatory practice for a business entity or employer to fail to hire a legally present job applicant or discharge an employee while retaining an employee who is an unauthorized alien under certain conditions (Section 17);
• Provide penalties for solicitation, attempt, or conspiracy to violate the law (Section 25);
• Prohibit the enforcement of certain contracts under certain conditions (Section 27); and
• Prohibit an alien not lawfully present from entering into a business transaction under certain conditions (Section 27).

The law is intended to avoid conflict with the enforcement of federal laws governing immigration and authorization to work in the United States, by incorporating federal laws in the Act’s definition of an “alien,” (Section 3(1)) and “unauthorized alien” (Section 3(16)); by requiring employers to use the federal E-Verify program (Section 15(b)) and to recognize federal work authorization programs. Under the law, a person may be regarded as an “alien unlawfully present in the United States” only if the person’s unlawful immigration status has been verified by the federal government pursuant to 8 U.S.C. §1373(c) (Sections 3 (10), 17(e)).

Some sections of the law affecting the Alabama Department of Homeland Security become effective immediately, and most sections of the law become effective on the first day of the third month following approval by the Governor. However, Section 9 (which applies to contracts with or grants from the state) is scheduled to take effect on January 1, 2012, and Section 15 (which prohibits knowing employment of an unauthorized alien to perform work within the State of Alabama) will take effect on April 1, 2012.

Legal challenges to the Act seem certain, as several groups have announced plans to challenge the constitutionality of its provisions. The Act contains a severability provision, which creates the possibility that some provisions may remain effective even if others are overturned by the courts.

Portions of the law are patterned on Arizona legislation that was upheld by the U.S. Supreme Court. On May 26, 2011, with Chief Justice John Roberts writing for the 5-3 majority, in part joined by Justices Scalia, Kennedy and Alito, the U.S. Supreme Court concluded that federal immigration law does not preempt or invalidate an Arizona law, which subjected state employers to sanctions for knowingly or intentionally employing unauthorized aliens and which required that all Arizona employers use E-Verify. Chamber of Commerce of the United States of America v. Whiting, No. 09-115, U.S. Supreme Court (May 26, 2011).

Note: This article was published in the June 15, 2011 issue of the Alabama eAuthority.