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July 11, 2007
Arizona Enacts Nation's Strictest Immigration Law

Arizona governor Janet Napolitano has signed a bill widely believed to be the nation's most stringent crackdown, to date, on the employment of illegal aliens.

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The Legal Arizona Workers Act, Chapter 279 of the Laws of 2007, bars employers from knowingly hiring unauthorized aliens, and establishes new criminal penalties.

Summary of provisions for employers. The new law contains two central features for employers. One is a new prohibition barring employers from knowingly or intentionally hiring illegal aliens. The other is a requirement that employers use the federal government's Basic Pilot Program to verify employee work eligibility.

An "employer" is defined as anyone who transacts business in the state, under a license issued by a state agency, and employing one or more people. The licenses involved are any permits, certificates, approvals, registrations, charters or similar forms of authorization required for operating a business in this state, including articles of incorporation and certificates of partnership, but not professional licenses.

Prohibition on knowingly or intentionally hiring unauthorized aliens. The new law defines "knowingly" as hiring an individual whom the employer knows is an undocumented worker, and "intentionally" as having the conscious desire to hire an undocumented person. Anyone may file a complaint alleging that someone is employing illegal aliens, and the state attorney general has the power to investigate those complaints, starting with verifying the person's work eligibility. If the attorney general decides that the complaint isn't frivolous, he or she notifies local law enforcement authorities, which begin prosecution.

Penalties for "knowing" employment. Employers found guilty of a first violation of knowingly employing an unauthorized alien may be ordered to terminate their employment. They also face suspension of their licenses, unless the company files a sworn affidavit with the county attorney, stating that the employer has terminated the person(s) and that the employer will not intentionally or knowingly employ an unauthorized alien.

If the affidavit is filed, the licenses are reinstated, but if it isn't filed, the court may suspend the company's licenses for up to 10 business days. The company will also be placed on probation for 3 years, requiring it to submit quarterly reports to law enforcement authorities on each new hire. If, during that period, an employer knowingly or intentionally hires an undocumented alien, its license will be revoked permanently.

Penalties for "intentional" employment. For a first violation of intentionally employing an unauthorized alien, the court may order the employer to terminate their employment and may suspend the appropriate licenses for a minimum of 10 business days. The company will also be placed on probation for 5 years, requiring quarterly reports to law enforcement authorities on each new hire. If, during that period, an employer knowingly or intentionally hires an undocumented alien, its license will be revoked permanently.

For both "knowing" and "intentional" offenses, license suspension decisions are based on the following factors: the number of unauthorized aliens employed by the employer; any prior misconduct; the harm resulting from the violation; whether the employer made good faith efforts to comply with the law; the duration of the violation; and the role of the company's managers in the violation.

Employer defenses. Employers have three defenses available to them. 1) If the employer can prove that it used the Basic Pilot Program to verify employment authorization, there is a rebuttable presumption that the company did not intentionally or knowingly employ an unauthorized alien. 2) If an employer can prove that it complied in good faith with the federal immigration law, it has an affirmative defense that it did not intentionally or knowingly employ an unauthorized alien. 3) If an employer believes in good faith that any of its actions would violate some other state or federal law, such as the antidiscrimination laws, it is not required to take that action.

Requirement of using the Basic Pilot Program. The law's second significant employer impact is that it requires every employer, after December 31, 2007, to use the federal government's Basic Pilot Program to verify employee work eligibility. That program involves use of a computer to check the employee's identifying information against federal government databases such as Social Security and immigration records.


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