Immigration Law News
Arizona's 2007 E-Verify Law to be Reviewed by U.S. Supreme Court. The U.S. Supreme Court has agreed to review the Legal Arizona Workers Act, which prohibits Arizona employers from knowingly or intentionally employing any worker not authorized by the federal Immigration and Nationality Act to work in the United States. The same state law mandates that every Arizona employer use the federal E-Verify database for confirming each new hire's authorization to work.
Whether the Arizona law is expressly or impliedly pre-empted by the federal Immigration and Nationality Act is the principal question to be answered. Chicanos Por La Causa v. Napolitano, 558 F.3rd 856 (9th Cir. 2009), cert granted sub nom. Chamber of Commerce v. Candelaria (June 28, 2009) (No. 09-115).
At the federal district court level, Sherman & Howard filed an amicus brief on behalf of the National Federation of Independent Business Legal Foundation arguing that federal law barred Arizona from imposing civil sanctions on employers and that the E-Verify program, expressly a voluntary program under the federal law, could not be made mandatory for every employer by the State of Arizona.
Professional H-1B Visas Still Available under 2011 Quota. The U.S. Citizenship and Immigration Services reports that several thousand H-1B "professional" visa slots remain available under the annual quota of 65,000 for professionals with at least a bachelor's degree and 20,000 for graduates of U.S. universities with advanced degrees.
On June 15, 2010 the agency reported 22,000 H-1B petitions toward the 65,000 annual quota had been received for petitioning employers. Another 9,400 toward the 20,000 had been received as well. Any employer contemplating hiring a foreign recruit should petition promptly.
Staffing Agencies Using H-1B Professionals Challenge U.S. Immigration Agency Interpretation. Information technology companies have filed suit against the U.S. Citizenship and Immigration Services challenging the agency's internal policy pronouncement - that IT staffing firms are not true employers and therefore not eligible to serve as petitioners for H-1B visas - makes utilizing the business model of a staffing firm almost financially unfeasible where information technology consultants are foreign professionals. The agency's assessment of the employer-employee relationship is at issue in Broadgate, Inc. v. U.S. Citizenship and Immigration Services, No. 1:10cv00941 (D.D.C.)
Colorado Conducting Audits of State-Mandated Affirmations. Colorado employers must affirm that each new hire has documentation establishing authorization to work in the U.S. and that the employer has not altered or falsified the employee's identification documents. Colo. Rev. Stat. § 8-2-122. This is in addition to the federal Form I-9. The Colorado Department of Labor and Employment is conducting both random and targeted audits of employer compliance. In our experience, if an employer not fully in compliance is audited, it may avoid penalties (fines up to $5,000 for a first violation and up to $25,000 for each subsequent violation) by taking immediate corrective action. Even if a Colorado employer has not complied in the past, on a going forward basis, an employer should ensure that hiring personnel are properly preparing both a federal Form I-9 and a state affirmation.
Arizona State Law Imposing Criminal Penalties on Persons without Evidence of a Lawful Immigration Status Challenged. A criminal statute enacted by the Arizona legislature and set to take effect July 29, 2010 - Senate Bill 1070, as amended by House Bill 2162- - has been challenged in Arizona federal court by a number of organizations, alleging it violates the U.S. Constitution in terms of criminal procedure, due process, and federal pre-emption, among other claims. See, Friendly House v. Whiting, Case 2:10-cv-01061-MEA (D. Ariz.).
This statute may impact Arizona employers and the available workforce if arrests and jail terms are imposed upon conviction. The U.S. Immigration and Customs Enforcement remains responsible for the detention of aliens and the enforcement of removal orders following proceedings in immigration courts maintained by the U.S. Department of Justice's Executive Office for Immigration Review.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.
©2010 Sherman & Howard L.L.C. July 7, 2010