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Greg Siskind on Immigration Law and Policy

JUDGE IS NOW CONSIDERING SUBSTANTIVE QUESTIONS REGARDING ARIZONA EMPLOYER LAW

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Last month, anti-immigration groups cheered that a judge refused to block the new business license/E-Verify law from going in to effect in Arizona. However, the ruling only dealt with procedural issues and the judge did not make a determination on the substantive questions surrounding the new law. Now Judge Wake is asking questions and it is far from clear that the bill's supporters will have sufficient answers. In particular, the judge is focusing on an employer's ability to appeal a decision, particularly when an employer can prove E-Verify is not accurate and an employee is, in fact, a permanent resident or a citizen. Remember, the recent Westat report showed that nearly 10% of naturalized US citizens in the country show up in E-Verify as being unlawfully present in the US. So there is more than just a slight chance there will be false positives. There will be many.



Arizona can probably fix this law to deal with the due process concerns and that would be the appropriate response (as opposed to attacking the lawyers who have raised these issues - the response that we're starting to now see).

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Comments

  1. Another voice's Avatar
    These are very interesting legal points.
  2. hmm's Avatar
    Looks like the story is very convoluted. To quote from the article there are differences in treatments new and existing employees.

    "Federal regulations allow businesses to use the E-Verify system solely to check the legal status of new workers, specifically forbidding database checks of existing employees. That means a company has no way of using the system -- and gaining that "rebuttable presumption" of innocence -- to ensure that its existing workforce is all legal.
    Attorneys for the state acknowledge that. But they also point out that any company that has accurately filled out the federal forms required when hiring new workers is entitled to an "affirmative defense" if it is charged with violating the new state law. That essentially gives businesses a claim to present to the court that they thought they were complying with the law, even if it turns out a employee was an illegal immigrant."

    I do not see why there must be any differences. What's the reason for "federal regulations" not allow running existing employees through e-verify?

    Also even for new employees I have trouble seeing how the judge can revoke the business licence when all employees show up in court with their US birth certificates or green cards. The article suggests the judges must ONLY RELY ON E-VERIFY determine if an employee is legal. So the judge will look the employee in the eye, review his US birth certificate and say: "no sir you may not work in Arizona". I do not believe it!
  3. Assissotom's Avatar
    Hi, nice site! Your hard work paid off
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