Legal analysis of AZ and TN illegal immigrant laws

The very informative Siskind Immigration Bulletin issued this informative analysis of laws going into effect 1/1/08. I have posted on the Arizona law but not the Tennessee law so far. Siskind writes,” The Arizona and Tennessee rules are similar in sanctioning employers who violate immigration laws with the revocation of their business licenses. This punishment is seemingly much more serious than the federal punishment of a fine since loss of a business license is really the death penalty for a business….2008 is likely to be a year of considerably more enforcement against employers violating immigration laws and we intend to cover the issue in great depth.”
The analysis:
On January 1st, employers in Arizona and Tennessee will begin having to comply with controversial new immigration laws that make those states enforcers of immigration law right along with the federal government. Whether state and local governments have the legal right to be doing this is the subject of many court battles around the country since the Founding Fathers clearly gave Congress the sole authority to regulate immigration. But with a Congress seemingly paralyzed in its attempts to get a handle on immigration policy and with 1400 bills pending around the country, the new reality is that employers will need to comply with a whole new set of laws on top of the existing federal rules.
The Arizona and Tennessee rules are similar in sanctioning employers who violate immigration laws with the revocation of their business licenses. This punishment is seemingly much more serious than the federal punishment of a fine since loss of a business license is really the death penalty for a business. Both rules provide a defense if employers have been complying with I-9 rules. Tennessee provides an additional safe harbor if employers have used the new E-Verify electronic employment verification system. Arizona goes a step further in actually mandating that all employers use E-Verify. This will represent a major expansion in the number of employers using E-Verify and it is far from clear whether the E-Verify system can handle the additional load. A recent report commissioned by the DHS itself noted that there is an unacceptable false positive rate and that as many as 10% of naturalized citizens show up in the E-Verify as being unauthorized to work.
Employers in Arizona had fought the new law and had been attempting to keep it from taking effect on the 1st. However, a judge has just denied an injunction order and the law will, in fact, take effect. An injunction is still holding in another measure aimed at employers – DHS’ social security number no match rule. DHS’ rule would sanction employers who are notified that their employees’ social security numbers and names do not match. One of the key issues in that case is also the high rate of false findings in the Social Security Administration database and the inability of that agency to resolve questions in a timely manner. However, DHS is promising to re-release a modified rule any day now that would attempt to meet the objections of the judge.
2008 is likely to be a year of considerably more enforcement against employers violating immigration laws and we intend to cover the issue in great depth.
To all of our readers around the world, all of us here at Siskind, Susser, Bland wish you all a year of peace, happiness and good health.
Regards,
Greg Siskind

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