Tuesday, June 26, 2012

US v. ARIZONA: WHAT DOES IT MEAN FOR EMPLOYERS AND EMPLOYEES?


On Monday,the Supreme Court of the US (SCOTUS) released its long-anticipated decision in Arizona v. US.The state of Arizona had sought to usurp the federal government’s authority toregulate immigration. SCOTUS largely declawed Arizona’s wildcat attempts.

As a resultof this decision, MU suggests that foreign nationals in Arizona should carrydriver’s licenses. SCOTUS specificallysaid that drivers licenses are valid proof of lawful status. If you do notdrive, you should contact your local Bureau of Motor Vehicles, which can issueyou a state identification non-driving license.

If you reside in other states where Arizona-style laws have been enacted, such as Iowa, Alabama,and Utah, you are also encouraged to get a driver’s license or state-issuedidentification. If your driver's licensehas expired and has not yet been renewed, please carry your I-797 Notice ofAction (Approval Notice) and/or Receipt Notice.

Foreignnationals are reminded that they are required to carry validpassports while in the US.

All of Arizona’s attempts to regulate immigration were struck down,save one. For employers and employees living and working in Arizona these arethe key points:

  • Arizona cannot create its own state-based crime of “illegally working”. Only the federal government can create a crime of “illegally working”. And the federal government has. Of course, all US employers – Arizona and elsewhere – must comply with the Form I-9 rules.
  • Arizona police officials cannot randomly stop and ask immigrants for papers. This is an important point and one that has not been well-articulated in the media.
  • In order for an Arizona police officer to ask to see their immigration documents, the police officer must have first have a reasonable suspicion that the person is illegal in the US. That suspicion cannot be based on their race, color of their skin, or their country of their birth. A reasonable suspicion may exist if, for instance, the police officer is tipped off by a credible informant that someone is illegally living/working in Arizona.

    Arizona v. US has several other applications that areinteresting, although not directly related to employment:

    • SCOTUS has confirmed that immigration is a federal legal area. This likely will tamp down various state efforts to regulate immigrant employment.
    • Arizona officials are no longer allowed to create their own Arizona alien registration system, even if it is based on the federal system. Only the federal government can create and regulate a federal alien registration system.
    • SCOTUS spent a lot of time on the immigration documents section. SCOTUS indicated that it would not tolerate future Arizona police officers who abused their power and based their suspicions on race, skin color, and origin. If there is abuse by Arizona police officers in the future, SCOTUS may bar Arizona officers from having the right to ever ask for immigration documents.

        1 comment:

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