73 The Alabama Lawyer 123 (2012). Alabama's New Immigration.

• Author: By John W. Hargrove and Jennifer J. McGahey

Alabama Bar Journal

2012.

73 The Alabama Lawyer 123 (2012).

Alabama's New Immigration

Alabama's New Immigration By John W. Hargrove and Jennifer J. McGahey Nuts and Bolts for Alabama Employers

Scope

Alabama's new immigration law covers a broad range of activities in the state. This article focuses on the new requirements for Alabama employers, both purely private and those that contract with the state. There are no references to "standing in the schoolhouse door" on the one hand or "what part of illegal can they not understand" on the other. Rather, this is just a straightforward, no-spin article (just the nuts and bolts) on the provisions affecting employers that will likely withstand legal and political challenge.

Brief Background of Immigration Law in America

There have been various federal laws regulating immigration into our country since we became a country, and there has been one primary statute governing legal entry into the United States since 1952 when the Immigration and Nationality Act (INA) was passed.(fn1) Although the INA established the comprehensive federal statutory scheme for regulation and naturalization of aliens in the United States, it was not until the passage of the Immigration Reform and Control Act (IRCA) in 1986 that employers became an important part of the immigration enforcement mechanism.(fn2) The IRCA made it (and continues to make it) "unlawful for a person or other entity . . . to hire . . . for employment in the United States an alien knowing that the alien is an unauthorized alien."(fn3)

The IRCA requires employers to review new employees' "documentation," such as passports, resident alien cards, drivers' licenses, social security cards, and other approved documents and complete the now familiar 1-9 form.(fn4) Thus, employers cannot retain workers known to be unauthorized under existing federal law.(fn5) Penalties can range from a few hundred to many thousands of dollars depending upon how many employees are involved and how many past violations have been committed by the employer.(fn6) A federal agency, now called Immigration and Customs Enforcement (ICE) , which is an arm of the Department of Homeland Security, principally enforces the IRCA. ICE regularly conducts employer audits, levies fines and conducts sometimes well-publicized "raids" on employers suspected of immigration violations.(fn7)

Who is and who is not authorized to work in the United States is well-defined in the IRCA and has been for a long time.(fn8) Alabama's law, like other states, adopts these federal standards and in no way attempts to define who is legal or who is not legal to work in the state. The Alabama law does not create any new documentation or authorization requirements that an alien must have. All those definitions and documents referred to in the Alabama statute come from this large body of federal law.

H.B. 56 Overview

On June 9, 2011, Governor Robert Bentley signed the immigration bill, H.B. 56, known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the Act) into law.(fn9) The Act imposes penalties in several areas pertaining to the presence, activities and, in particular, employment of illegal immigrants in the state of Alabama. Its provisions become effective at different times, but the main effective dates for employers were January 1, 2012 and then April 1, 2012. These dates will be discussed in section V of this article.

The Act is 71 typed pages and has 34 sections. It contains both civil provisions and criminal sanctions. As already widely publicized, conduct regulated includes eligibility for public benefits including medical and post-secondary education benefits(fn10) ; harboring or transporting of or renting to unlawful aliens(fn11) ; the carrying of alien registration documents and making them available to law enforcement officers during traffic stops and the like(fn12) ; and entering into business transactions with the State of Alabama, such as purchasing any type of license or vehicle tag.(fn13) The Act requires voters to have proof of citizenship to vote(fn14) ; requires public schools to determine the immigration status of children enrolling in schools(fn15) ; requires law enforcement officers to detain those who cannot provide proof of legal status(fn16) ; and requires those within state government to comply with the law and to do nothing to restrict the enforcement of it.(fn17) Criminal provisions are included for willful failure to complete or to carry an alien registration document(fn18) ; for applying for work if unauthorized(fn19) ; for concealing unauthorized aliens(fn20) ; for dealing in false identification documents(fn21) ; and for attempting to enter into any business transaction with the state.(fn22)

In addition to these broad provisions, there are several sections of the Act which apply only to employment. Those are contained principally in sections 9,15,16 and 17 and will be discussed below in more detail.

Before moving to a specific discussion of those provisions and a consideration of whether Alabama employers likely will face long-term compliance issues under them, however, it is important to reemphasize that the Act adopts the federal definition of authorized and unauthorized workers.(fn23) No worker who is legal under federal law is illegal in Alabama. In other words, the illegal...