Immigration Law Update
On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB 56). This Act has been both hailed as a necessity to prevent “economic hardship” and “lawlessness” in the state and condemned as inviting “rampant exploitation of immigrants.” This Act is one of the most controversial ever enacted in the state and has been challenged by various religious and civil rights groups, multiple foreign countries, and the United States Department of Justice.
On August 29, 2011, United States District Judge Sharon Blackburn entered an injunction temporarily stopping the Act from going into effect until September 29, 2011, in order to give the court more time to consider the lawsuits and their constitutional challenges of the Act. The memorandum and opinion of the court are due to be issued no later than September 28, 2011.
Regardless of the ruling that Judge Blackburn ultimately issues, there are ramifications in the new immigration law for all businesses, including smaller businesses and those in the practice of veterinary medicine.
The new immigration law requires that all employers in the state of Alabama use the E-Verify Internet-based system to verify that employees are eligible to work in the United States legally. E-Verify is an electronic program through which employers verify the employment eligibility of their employees after hire. The program was authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In short, employers submit information taken from a new hire's Form I-9 (Employment Eligibility Verification Form) through E-Verify to the Social Security Administration and U.S. Citizenship and Immigration Services (USCIS) to determine whether the information matches government records and whether the new hire is authorized to work in the United States.
Under federal law, this system is a voluntary federal program for most employers, and mandatory for employers with federal contracts and contracts which contain the Federal Acquisition Regulation E- Verify clause. However, under the new Alabama law, all employers in Alabama must use this system, effective April 1, 2012, to verify the eligibility of their applicants to work in the United States. Although the question as to whether this legal requirement will be upheld by a federal court in Alabama is still open as of the time of the writing of this article, other federal courts, and the Supreme Court of the United States, has indicated that states can mandate use of the E-Verify system at the state level. As such, all employers should be prepared to meet these requirements by that date.
The process to use the E - Verify system is relatively simple. An employer must enroll on the E- Verify website at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES .
In this process, the employer must fill out a questionnaire and agree to the terms of the Memorandum of Understanding published for users of the system. There is also a user manual for employers online at http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/manual-employer_comp.pdf. Enrollment in the system is free.
Even though there are some likely challenges to the new immigration law which will result in a delay in the effective date of certain portions of the law, or a final ruling that some of the provisions may be unconstitutional, all employers would be well advised to prepare to use the E-Verify system in April of next year.
In addition, the new Alabama immigration law does not affect employers’ current obligations under the Immigration Control and Reform Act of 1986. Those requirements include filling out a Form I-9. This form is available at: http://www.uscis.gov/files/form/i-9.pdf . Employers should also remember that knowingly employing or continuing to employ an employee who is ineligible to work in the United States violates federal law, regardless of the status of enforcement of the new Alabama immigration law.