The Ninth Circuit Court of Appeals on Wednesday issued a ruling upholding the Legal Arizona Workers Act (“LAWA”).  LAWA provides for the suspension and revocation of the business licenses of Arizona employers who knowingly employ illegal immigrants.  LAWA also requires employers to verify the work status of newly-hired workers through the federal E-Verify employment verification program.  Last year, various business and civic associations and non-profit corporations filed two lawsuits challenging LAWA on the ground that the Act infringes on federal immigration powers.  They also claimed that LAWA lacks adequate due process protection for Arizona employers.

A three-judge panel of the court of appeals upheld the ruling of U.S. District Court Judge Neil Wake, who this past February found that the Act was enforceable and compatible with federal immigration law.  Consequently, the Ninth Circuit affirmed Judge Wake’s finding upholding LAWA’s authority to suspend or revoke the business licenses of employers who hire undocumented workers.  The Ninth Circuit also agreed with Judge Wake’s finding that the Act’s provision requiring Arizona employer’s to use the E-Verify program was lawful.

The court of appeals also rejected the plaintiffs’ argument that LAWA violates an employer’s due process rights.  The Ninth Circuit found that the Act allows an employer to present evidence in its defense before its license is revoked by the state.  The court explained that “[a]n employer’s opportunity to present evidence at a hearing in superior court, in order to rebut the presumption of an employee’s unauthorized status, provides the employer a meaningful opportunity to be heard before sanctions are imposed.”

The court of appeals recognized, however, the possibility of future challenges to the Act on other grounds, noting that, so far, LAWA has not been enforced against any employer since the law took effect nine months ago.  The appeals court made it clear that it would entertain future challenges to the Act based upon how the Act is enforced by state, county and local officials.  The court of appeals explained that “[i]f and when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.”  Chicanos Por La Causa, Inc. v. Napolitano, No. 07-17272, Ninth Circuit Court of Appeals (September 17, 2008).

Additional Information

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 appeared in the September 18, 2008 issue of the Arizona eAuthority.


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