On October 13, 2011 the Department of Homeland Security published notice that it is extending Temporary Protected Status for the Sudan from November 2, 2011 through May 2, 2013, and that it is separately designating TPS for the newly formed nation of South Sudan. Affected and eligible TPS Sudanese nationals can extend TPS status and automatically extend employment authorization. Affected and eligible nationals of the Republic of South Sudan can continue TPS status and also continue employment authorization.
As background, the United States grants a safe haven or TPS to nationals of a country that has experienced temporary conditions that prevents a safe return of its nationals from the United States arising out of an ongoing armed conflict, or a national disaster such as an earthquake, or for other extraordinary reasons. Affected nationals must have been in the United States by a date certain before the date of DHS designation. Benefits are not automatic and affected nationals must apply to USCIS both for TPS and for employment authorization based upon TPS. TPS grants are for a discretionary period of 6, 12, or 18 months and can be renewed without limitation provided the basis for the designation continues.
The Attorney General first designated the Sudan for TPS on November 4, 1997. Since then, TPS has been extended 12 times. DHS advises that it is extending TPS again for the Sudan because the armed conflict there continues and extraordinary conditions persist. The re-registration periods for current Sudanese TPS beneficiaries starts on October 13, 2011 and ends 180 days later on April 10, 2012. Sudanese nationals must establish continuous residence in the United States since October 7, 2004.
The Republic of South Sudan gained independence from the Sudan on July 9, 2011, creating a dilemma for some Sudanese TPS beneficiaries and for the United States. Because DHS was concerned that some Sudanese may now be citizens of South Sudan and may no longer be covered by the ongoing Sudan TPS designation, it designated South Sudan for TPS benefits. TPS for South Sudan began on October 13, 2011 and will remain in effect until May 2, 2013. The registration period begins on October 13, 2011 and ends 180 days later on April 10, 2012. South Sudanese nationals must establish continuous residence in the United States since October 7, 2004.
Persons granted TPS are permitted to remain in the United States for the TPS grant period, to obtain employment authorization while here, and are eligible to apply for travel permission. Presently, the DHS has TPS in effect for El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan and now South Sudan.
Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit http://www.rabinowitzrabinowitz.com.
USCIS has released EB-5 program statistics for fiscal year (“FY”) 2010 and Q1 through Q2 of FY 2011, showing a marked increase in program usage.
As of June 30, 2011, USCIS reports that there are 147 approved Regional Centers operating in 39 states and 83 pending Regional Center proposals. In all of 2010, there were 110 new Regional Center applications filed, yet by the end of Q2 for fiscal year 2011 alone, there have been 146 new applications, which is a significant increase.
For FY2010 USCIS received 1,955 initial investor petitions, and by the end of Q2 of FY2011 the USCIS had already received 1,601 initial investor petitions. The released data shows an 89 percent approval rate in FY 2010 for initial investor petitions, and an 81 percent approval rate for initial investor petitions in Q1 and Q2 of 2011.
USCIS reports that for FY2010, 41 percent of EB-5 visas were used by persons born in mainland China, 16 percent by persons born in South Korea, 7 percent by persons born in Great Britain and Northern Ireland, 5 percent by persons born in Taiwan, 3 percent by persons born in India, and the remaining 28 percent by persons from all other countries.
As to adjudication timeframes, once a foreign national investor files his or her initial petition, USCIS reports a five and a half month adjudication period from filing to decision. That time period must be adjusted upward to account for the USCIS’ Requests for Evidence (“RFE”), which sometimes are issued before USCIS makes a decision in the case. After receiving an RFE response, the USCIS strives to conclude case adjudication within 30 days after receipt of the requested evidence, but that time period is not the typical time period. Current time periods vary, with some investors waiting many times that period, making the actual adjudication time period much longer for some investors using the program.
Stewart Rabinowitz is President of Dallas-based Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney, please visit http://www.rabinowitzrabinowitz.com.
After Umar Farouk Abdulmutallab, often referred to as the “Underwear Bomber”, allegedly tried to detonate a bomb on a flight to Detroit on Christmas Day in 2009, questions have arisen regarding the roles of the Department of State and the Department of Homeland Security (DHS) in matters of visa security and whether any changes in law are warranted.
Abdulmutallab’s father had warned the U.S. Embassy at Abuja, Nigeria that his son might be a threat to the United States a month before the alleged bomb attempt. Officials at the Embassy sent a cable to the National Counterterrorism Center about Abdulmutallab, but no action was ever taken. State Department officials said that they did not have enough information to revoke his visa at that time. Abdulmutallab had been traveling on a multi-year, multiple-entry tourist visa that was issued in June 2008.
A recent Congressional Research Service report addressed the roles that the Department of State and the Department of Homeland Security play in visa security and the conflicting positions about the role intended for each department.
Under the Homeland Security Act of 2002, the State Department is to issue regulations governing visa issuance, staff U.S. consular posts abroad to advise and investigate as needed, and have consular officers bear responsibility for issuing visas. DHS’ U.S. Citizenship and Immigration Services (“USCIS”) approves immigrant and nonimmigrant petitions, DHS’ Immigration and Customs Enforcement operates the Visa Security Program, and DHS’ Customs and Border Protection inspects people who apply for admission to the U.S. The Department of Justice also plays a role in visa policy by making adjudicatory decisions on specific immigrant cases that it receives.
The report acknowledges the opinion of some that the DOS exercises too much control over the visa process, asserting that the intent of the Homeland Security Act was to have DHS be the lead agency with DOS merely administering the process. The opposing view is that DOS has officers on the ground in consular posts worldwide with country-specific knowledge and is in the best position to play the lead role in visa processing. Cost plays a role too, in that expanding DOS’ role may be prohibitively expensive for that Department.
Recently, a bill passed the House Committee on the Judiciary that would give the Secretary of Homeland Security exclusive authority on matters of visa security. The issue of changes to current processing, it appears, remains up in the air awaiting Congressional action.
Stewart Rabinowitz is President of Dallas-based Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney, please visit, http://www.rabinowitzrabinowitz.com.
U.S. citizens traveling abroad in or near the state of Chihuahua, Mexico have been warned to remain vigilant for threats of violence after Mexican authorities captured key members of a cartel in the city of Juarez.
One of those captured, Jose Antonio Acosta Hernandez, is a former police officer who has admitted to ordering the deaths of more than 1,500 people near the U.S. border. He is also a suspect in a U.S. consulate employee killing at a border crossing near Juarez.
The U.S. State Department warned that the captures “bring with them the potential for an increase in violence,” and speculated that cartel members could retaliate by targeting members of other cartels, law enforcement authorities or members of the public. The U.S. Consulate in Ciudad Juarez and ports of entry to the U.S. are areas where U.S. citizens should remain especially vigilant, the State Department said, as the Department had obtained information that these locations could be targeted, perhaps with a car bomb.
The state of Chihuahua is on the northern side of Mexico, adjacent to the U.S. states of Texas and New Mexico. The city of Juarez, infamous as a drug cartel stronghold, sits on the northern border of Chihuahua near El Paso, Texas. Prior to 2009, Juarez held the highest murder rate in the world at 130 murders per 100,000 residents. There were 3,075 homicides in 2010, most of which have been linked to drug cartel violence.
The State Department offers the Smart Traveler Enrollment Program, or STEP, for those who travel abroad to dangerous areas. STEP is a free program that lets travelers enter information about their upcoming trip so that the Department of State can better assist such persons in case of an emergency. It also helps traveling Americans to find information about the locations of the nearest embassies or U.S. consulate offices.
Many Mexicans have sought asylum in the U.S. due to cartel violence. Asylum requests reached a record 5,551 last year, according to figures released by the government. Only 165 of these requests were granted.
Stewart Rabinowitz is President of Dallas-based Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney, please visit http://www.rabinowitzrabinowitz.com.
San Francisco Sheriff Michael Hennessey has announced that he will release illegal immigrants who are believed to have committed low-level crimes instead of jailing them and turning them over to federal authorities.
Hennessey declared his distaste for the Secure Communities program run by U.S. Immigration and Customs Enforcement in an op-ed piece in the San Francisco Chronicle last month. Local law enforcement, which use the Secure Communities program, send the fingerprints of arrested criminal suspects to ICE to check them against federal immigration databases. A match can result in commencement of removal proceedings.
Critics have long argued that Secure Communities actually undermines public safety, and that immigrants will stop reporting crimes they see because they are afraid of deportation.
“ICE’s Secure Communities program puts local police in a bind. How can local police provide a ‘secure community’ if various members of that community will not report crimes nor offer to testify out of fear of federal action against the victims or witnesses? Some local police see their hard work in building community trust evaporate,” says Dallas immigration attorney Stewart Rabinowitz of the firm of Rabinowitz & Rabinowitz, P.C.
Hennessey stated that any illegal immigrants arrested for low-level crimes – such as shoplifting or public drunkenness – will not be held in jail, even if federal immigration agents request their detainment. He said that he would still report suspected felons to ICE, as he has been for years.
“Reports of persons removed for non-criminal conduct, such as visa overstays, who were stopped for minor traffic infractions are not what ICE had in mind in portraying the Secure Communities program as designed to remove dangerous criminal aliens from our streets,” Rabinowitz says.
“San Francisco has always been a city of immigrants,” Hennessey said. “We are proud of our diversity. We value the contributions of immigrants to our community. Law enforcement and other civic leaders work hard to serve all of our residents in an effort to promote the health and safety of our neighborhoods. Unfortunately, Immigration and Customs Enforcement’s controversial Secure Communities program violates this hard-earned trust with immigrant residents.”
Under federal law, other law enforcement officers can still choose to report immigration status to ICE. Several have already declared their intent to do so.
The U.S. Department of Homeland Security has granted Haitians living in the U.S. under Temporary Protected Status (“TPS”) an 18-month extension, allowing them to live here until Jan. 22, 2013. It had previously been set to expire in July.
The program gives temporary legal status to foreign nationals whose homeland has sustained a crisis, such as civil war or environmental disaster. Haiti sustained massive amounts of damage after a massive earthquake on Jan. 12, 2010.
“In the extended aftermath of the devastating earthquakes in Haiti, the United States has remained fully committed to upholding our responsibility to assist individuals affected by this tragedy by using tools available under the law,” said DHS Secretary Janet Napolitano.
Haitians who came to the U.S. before the quake will also benefit from the 18-month extension. Those seeking an extension have 90 days to apply. The DHS Secretary also re-designated Haitians as eligible for TPS, permitting a larger class of Haitians who arrived after the earthquake to qualify for TPS. Haitians who are applying for the first time must do so within six months.
About 48,000 Haitians are currently living in the United States under temporary protected status. It is believed there are many more are in the United States that have not applied because they could not afford the $470 application fee or were afraid of registering because they could be deported after the status ends.
“In light of the sheer level of continuing human misery in the aftermath of the Haitian earthquake of 2010, it is a positive step to see the U.S. assist those Haitians already in the U.S., who qualify for TPS, continue to be able to stay while Haiti all-to-slowly rebuilds. Extension and of TPS and re-designation of that status is a vast improvement over deporting Haitians,” says Dallas immigration attorney Stewart Rabinowitz of the firm of Rabinowitz & Rabinowitz, P.C.
The 2010 earthquake killed more than 230,000 people and left many more homeless. A cholera outbreak caused by a lack of potable drinking water has claimed more than 4,800 lives in the 17 months since the quake.
The U.S. had initially resisted granting protected legal status to thousands of Haitians because officials believed it may cause mass migrations of Haitians across the Caribbean, needlessly putting Haitian lives in danger once again.
1. This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by June 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.
2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.
3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:
FAMILY-SPONSORED PREFERENCES
First (F1): Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.
Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.
Third (F3): Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.
Fourth (F4): Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Family- Sponsored
All Chargeability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
F1
01MAY04
01MAY04
01MAY04
08MAR93
15APR96
F2A
22MAR08
22MAR08
22MAR08
15FEB08
22MAR08
F2B
01JUL03
01JUL03
01JUL03
22SEP92
22SEP00
F3
15JUL01
15JUL01
15JUL01
15NOV92
22MAR92
F4
08MAR00
08MAR00
08MAR00
01MAR96
15MAY88
*NOTE: For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 15FEB08. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 15FEB08 and earlier than 22MAR08. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Employment-Based
All Charge-ability Areas Except Those Listed
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
08MAR07
08MAR07
C
C
3rd
08OCT05
01JUL04
01MAY02
01JUL05
08OCT05
Other Workers
22NOV04
22APR03
01MAY02
22NOV04
22NOV04
4th
C
C
C
C
C
Certain Religious Workers
C
C
C
C
C
5th
Targeted Employment Areas/ Regional Centers and Pilot Programs
C
C
C
C
C
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541 . This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
B.
DIVERSITY IMMIGRANT (DV) CATEGORY
Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2011 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.
For July, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas
Except Those Listed Separately
Except
AFRICA
57,600
Egypt 35,000
Ethiopia 30,650
Nigeria 18,500
ASIA
33,775
EUROPE
33,000
Uzbekistan 28,200
NORTH AMERICA
(BAHAMAS)
12
OCEANIA
1,400
SOUTH AMERICA,
and the CARIBBEAN
1,400
Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2011 program ends as of September 30, 2011. DV visas may not be issued to DV-2011 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2011 principals are only entitled to derivative DV status until September 30, 2011. DV visa availability through the very end of FY-2011 cannot be taken for granted. Numbers could be exhausted prior to September 30.
C.
ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN AUGUST
For August, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region
All DV Chargeability Areas
Except Those Listed Separately
Despite being one of the most-discussed issues in contemporary politics, immigration reform has been at a relative standstill at the federal level for almost a decade. But two former U.S. Immigration and Naturalization Service General Counsels argue that the executive branch of the government can actually implement change without waiting for Congress to pass a bill.
Bo Cooper, Esq. and Paul Virtue, Esq., both former INS General Counsels, recently stated that law enforcement authority to use discretion in investigations and prosecutions is not just possible; it is “fundamental to the American legal system.” The legal system permits law enforcement officers and other executive branch members such as the President and the Department of Homeland Security discretion to decide whether to deport illegal immigrants in most cases.
“The executive branch has more authority in immigration matters than its is willing to exercise. It could expand Parole-in-Place and permit persons who merit the favorable exercise of discretion to remain in the U.S., and even be able to adjust their status to that of lawful permanent residence if its chooses. Or it could defer action against persons meriting such discretion to remain in the U.S. by a formal application process,” says Dallas immigration attorney Stewart Rabinowitz of the firm of Rabinowitz & Rabinowitz, P.C.
The executive branch often grants a case “deferred action” and chooses not to prosecute certain illegal immigrants, even though they are otherwise deportable. The DHS secretary has previously granted this to widows of U.S. citizens who could not adjust their status due to their spouse’s death. Over 12,000 individuals who were applicants for the Violence Against Women Act were also granted deferred action in 2010.
The President can take action to change immigration law with a “signing statement.” Presidents George H.W. Bush, Clinton, George W. Bush and Obama have all issued signing statements in the past, many of them relating to immigration, and President Obama could choose to enact further changes if he chooses.
“For a significant minority of cases, it is tragic that the executive branch chooses exercise its power so stingily, and looks only to Congressional action as a means to implement any significant change,” Rabinowitz says.
The United States Citizenship and Immigration Services recently released its annual report regarding naturalization in the U.S. for the 2010 year.
The data shows that naturalization has declined by approximately 426,000 since 2008. The total number of persons naturalized has also consistently declined since 2008 from every region of the world except for Africa. USCIS opines that the declining rates do not suggest a historical trend, but that the 2008 rates were caused by a surge due to an impending filing fee increase for naturalization applications, and the current figures reflect that year’s surge.
“USCIS recognizes that there are year to year fluctuations in the number of people naturalizing and cautions against drawing conclusions based on data over the short three year period covered in the report,” said Dallas immigration attorney Stewart Rabinowitz of the firm of Rabinowitz & Rabinowitz, P.C. “One explanation in the decline in naturalization numbers may be attributed to the high USCIS naturalization filing fee of $680 at a time of high unemployment during the current recession.”
The data also shows continued trends seen over the past several decades. Prior to the 1970s, most of those naturalizing were of European descent. Since 1976, persons from Asia have led persons from other regions in U.S. naturalization rates. This change occurred largely because of the increased immigration from Asian countries, from Vietnamese refugees during the Vietnam war, and because persons from Asian are more likely to seek U.S. naturalization than those from European, according to the report. Forty-one percent of those naturalized in 2010 were Asians.
The report attributes the growth of naturalization of those from Africa to the elimination of the annual limit of 10,000 asylum status adjustments that occurred in 2005. One in six originally from Africa who naturalized in the U.S. had held held asylum status.
Mexico led other countries in the number of persons naturalized with 67,062. India ranked second with 61,142, and the Philippines and China rank third and fourth with around 35,000 persons naturalized each. Women accounted for about one-third of all persons naturalized, and more than half of all persons naturalized were between 25 and 44 years old. Two-thirds were married.
The U.S. Supreme Court has upheld an Arizona law which penalizes employers who knowingly employ unauthorized workers by suspending or revoking the employer’s state business licenses, as falling within an exception provided within existing federal immigration legislation. The exception permits states to impose sanctions against such employers through licensing and similar laws. The court’s decision also permits Arizona to make mandatory the voluntary federal program known as E-Verify.
As background, in 1986, Congress enacted the Immigration Reform and Control Act. This comprehensive legislation created a federal scheme imposing requirements on all employers in the U.S. to make certifications regarding each new employee and requiring that all future employees prove their identity and work authorization within the first few days of hire, to prevent the employment of unauthorized workers. Arizona enacted the Legal Arizona Workers Act in 2007 as an additional penalty against employers who knowingly hire unauthorized workers. Arizona employers who knowingly hire such workers can have their articles of incorporation suspended, or even revoked. In addition, Arizona required employers within the state to participate in a federal program known as E-Verify. E-Verify is a federal voluntary, web-based program which the Department of Homeland Security offers to employers to check the work authorized status of new hires. It is a supplement to existing federal workforce requirements.
The Court held that the Arizona law did no more than impose licensing conditions on businesses operating within Arizona, and was not preempted by the comprehensive 1986 federal legislation. It further held that while E-Verify was available nation wide, there has been no Congressional intent expressed to prevent a state from requiring participation in the program. Multiple states have already made participation in E-Verify mandatory for its employers.
*Stewart Rabinowitz is president of Rabinowitz & Rabinowitz, P.C., a Dallas based immigration law firm.
