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The H-1B Visa Blog by Siliato and Malyk

Arizona’s New Immigration Law – The Proof Will Be In Its Enforcement

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Years of congressional inaction and paralysis on immigration reform have created an untenable situation that, depending on which "side of the fence" one sits on the Arizona immigration law  debate,  has either forced the Arizona legislature to take necessary action or permitted overzealous lawmakers to trump federal authority.  And while a constitutional challenge of the law will most likely result in its demise, the immigration debate will not abate until such time that a bi-partisan comprehensive immigration reform bill is passed by Congress.  In the interim, one can only conjecture what effect the Arizona law will have on legal immigrants and those who employ them in the State.


Under the Arizona law, a police officer who has a "reasonable suspicion" about the immigration status of an individual may not only detain but has the right to even jail such person.  Such police power does not portend well with the vast majority of non-immigrants who are authorized to work in the state and who may be doing nothing more than going shopping or taking a jog if they are not in possession of their "papers."  For example, H-1B workers are rarely required to randomly produce their "papers" at any time or place--"papers" that contain sensitive personal and professional information which could be lost or stolen and may be hard to replace. Under the new Arizona law, though, every police officer becomes, in effect, an immigration enforcement agent that can demand such paperwork at any time. Without proper training, what such officers might not understand, however, is that an H-1B worker may be in the U.S. legally, but be without the necessary "paperwork" to convince the officer of the same.  For example, a timely filed extension of stay may be pending on behalf of the H-1B worker, thereby allowing the worker to remain and work in the U.S. legally. If the officer insists on the production of an unexpired Form I-94, the H-1B worker would likely be unable to comply even though he/she may be in an authorized period of stay.


Given the complexity of the immigration laws and the likely uncertainty that will arise from the of enforcement of the Arizona law, many employers may opt to take their business elsewhere rather than risk their workers (a) being detained on account of a stop based on "reasonable suspicion" or (b) being incarcerated for not being in possession of the appropriate documents..  The Arizona law may also discourage foreign national students from attending colleges and universities in the State.


The Arizona law will be challenged in court and may even push ahead efforts in Congress to adopt comprehensive immigration reform.  In the meantime, Arizona employers should take heed and forewarn its H-1B workers to carry with them their H-1B documents at all times -- and hope that a local police officer's actions (whether they are based on ignorance of the immigration laws and regulations or racial profiling) do not result in an unwarranted arrest and/or detention of one of such employer's authorized workers.


For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here  to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.


Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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