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How Will SB1070 Impact U.S. Employers?

by Ann Cun

By now, the headlines regarding Arizona’s S.B. 1070 law have been splattered across many news outlets. Many wonder what practical impact it would have on U.S. employers when it comes to I-9 and E-Verify? For more details on the immigration impact for global employers in the U.S., please visit our sister blog, Case Management Guru. We’ll take a closer look today as it relates to worksite compliance.

Some Background

Back in April 2010, Arizona enacted into law S.B. 1070, a fairly comprehensive immigration law for the state. Despite the law being challenged in court by many groups, many other states subsequently followed in Arizona’s footsteps by enacting their own state immigration laws. The federal government ultimately sued to prevent certain provisions of S.B. 1070 from going into effect, arguing that those provisions interfered with the federal government’s exclusive jurisdiction of immigration laws. The case traveled from the District Court all the way to the U.S. Supreme Court over the course of about a year. The case, Arizona v. United States, was subsequently submitted to the U.S. Supreme Court on certiorari. After a grant of review, the U.S. Supreme Court made its decision yesterday.

The Outcome of the Provisions in S.B. 1070

The Supreme Court was asked to review four primary provisions of S.B. 1070. Click here to read the review of those four provisions. Section 2(B) was upheld to be constitutional while three other sections (3, 5(C) and 6) were struck down as having been preempted by the Supremacy Clause.

The Takeaways for U.S. Employers

After S.B. 1070 was enacted, many states considered passing their own version of S.B. 1070, though only a handful of states actually succeeded. These included Alabama, Georgia, Indiana, South Carolina and Utah. (Access more details here on our map).

• From a policy perspective, states with similar provisions will probably be revising their laws as a result of yesterday’s ruling. Those states contemplating a similar law to S.B. 1070 will probably be revising their legislation in order to withstand constitutional challenges in federal court. If your organization is located in a state that has pending legislation, be mindful of how the legislation will be drafted as it may impose consequences on U.S. employers.

• DHS Secretary Napolitano commented that the decision had little impact on the DHS’s recent policy directive on prosecutorial discretion for DREAMers. (Read the updates on our sister blog here.) That directive authorizes USCIS to grant work authorization in two-year (renewable) increments to certain individuals who qualified for deferred action. How the work authorization will be issued and what the process will entail has yet to be finalized by DHS. Pending guidelines should be released to the public by mid-August 2012. We’ll be sure to report on how that impacts I-9 processing for employers at a later time.

• The decision may (hopefully) hasten comprehensive immigration reform on the part of Congress. The provision of the law upheld may further deter undocumented workers from entering or staying in states like Arizona, but it may also drive those workers underground. Employers in many industries that rely heavily on laborers continue to report a shortage of workers.

Read the Takeaways for Immigration Practitioners and Global Employers here.

Do you agree that the practical impact will be primarily policy-based? Send me your comments.
This article originally appeared on LawLogix Group Inc. Reprinted with permission.

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.