Arizona Law Update – Injunction Prevents Enforcement of Key Provisions

On July 28, one day before Arizona’s controversial immigration law (commonly referred to as S.B. 1070) was set to take effect, a federal judge issued an injunction preventing implementation of several of the law’s key provisions. As reported in the July 2010 issue of the Immigration eAuthority, the U.S. Department of Justice (DOJ) filed a lawsuit on July 6 on behalf of the federal government challenging the constitutionality of Arizona’s controversial new law. The DOJ argued that federal law preempts S.B. 1070 since the Arizona law interferes with the federal government’s authority to set and enforce immigration policy. U.S. District Court Judge Susan Bolton found that the federal government was likely to prevail on the merits of its lawsuit and granted the preliminary injunction.

The most controversial provisions of S.B. 1070 are thus “on hold” pending further legal proceedings, including the provisions making it illegal to solicit employment on the street (the “day laborer” provision) and the section of the law that authorizes and compels law enforcement officers to verify the legal status of persons reasonably believed to be illegally present in the country. The state of Arizona filed an expedited appeal with the U.S. Court of Appeals for the Ninth Circuit requesting the injunction be lifted; however, no decision is expected on the appeal until at least the second half of September.

For now, the most important thing for Arizona employers to know is that, without regard to the DOJ lawsuit, E-Verify participation is required of Arizona employers under the previously enacted Legal Arizona Workers Act (LAWA.) LAWA was previously challenged in a separate lawsuit and the U.S. Supreme Court agreed in late June to review the law’s constitutionality. S.B. 1070 contains a provision that adds the requirement that employers retain E-Verify verification records for the duration of a worker’s employment or three years (whichever is longer). That provision was not challenged by the DOJ and thus remains in effect even after the judge’s ruling. Thus, employers are advised to retain such records until further notice.