Alabama’s new comprehensive immigration law, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, was enacted on June 9, 2011, and has been described as the nation’s toughest immigration law.  Other states that have recently passed their own laws concerning immigration – historically reserved to governance by the federal government – include Georgia, Indiana and Utah.  Most provisions of Alabama’s immigration law become effective September 1, 2011, with certain exceptions.

Overview of Alabama’s Immigration Law

The Alabama statute allows police to arrest or detain individuals suspected of being in the country illegally during routine traffic stops.  In addition, Alabama’s law includes a unique provision requiring public schools to report the immigration status of students.  The law also criminalizes knowingly sheltering or harboring illegal immigrants, which includes, but is not limited to, renting housing to or transporting them.
Contracts with unauthorized immigrants are not enforceable where the contracting party had knowledge that the person was unlawfully present.  The statute includes certain exceptions such as agreements for one night’s lodging, food to be consumed by the illegal immigrant, medical services and travel to the immigrant’s home country.  For the illegal immigrant, attempting to engage in any business transaction with the State – such as obtaining a driver’s license, car tag or business license – is a Class C felony under the law.  It is also unlawful for an illegal immigrant to knowingly apply for work, solicit work or perform work as an employee or independent contractor.

Employers

All employers are required

  • To use the federal E-Verify database.
  • To determine if new workers are in the country legally – employers are prohibited from knowingly employing illegal immigrants.  Knowingly includes both actual and constructive knowledge (knew or should have known).

The employer’s review is subject to a reasonableness standard. An employer acts unreasonably if it becomes aware of information that creates a suspicion than an employee is an unauthorized immigrant.
Examples include:

  • Employee’s admission.
  • An employee’s failure to assist in the completion of the Form I-9 within three days of employment.
  • Discrepancies between the information and documentation provided by the employee.
  • A “no-match” from the Social Security Administration.

These requirements apply to all employers, both public and private, regardless of size. There is an alternative e-verification system allowed for Alabama employers with fewer than 26 employees.  For private employers, the E-Verify requirement becomes effective on April 1, 2012, but all businesses that receive government contracts or grants must provide proof of enrollment and participation in the E-Verify system beginning on January 1, 2012.

Penalties

First Violation

  • The termination of the unauthorized immigrants.
  • A three-year probationary period with quarterly reports required of every new employee.
  • Submission of an affidavit of compliance.
  • The suspension of the business license and required permits for the violating location of a business for up to ten days.

Second Violation

  • Permanent revocation of the business license and permits for the violating location.

Third Violation

  • All business licenses and permits for all locations of the violating business throughout the state are permanently revoked.

Monetary Penalties

  • Civil penalty in an amount between $1,000 and $5,000 per day.

Government Contracts/Grants

  • First violation – the contract can be voided and the business license can be suspended for 60 days.
  • Second violation – a contractor’s business license can be revoked permanently.

The employment provisions of the immigration law make the employer liable for discharging or failing to hire a citizen or person authorized to work in the United States while hiring or retaining an illegal alien.  Courts may award compensatory damages, as well as attorneys’ fees, but not punitive damages.
There are also tax consequences for employers under the immigration law.  Wages paid to unauthorized immigrants are not allowed as business expense deductions on the employer’s income tax returns.  The penalty for claiming such a deduction for an illegal immigrant employee is ten times the deduction claimed.

Exceptions under Federal Title 8

Many of the exceptions under the Alabama statute are consistent with federal law.  Illegal immigrants are not prohibited from the following services:

  • Primary or secondary school education.
  • Obtaining health care items and services necessary for the treatment of an emergency medical condition of the person involved and are not related to an organ transplant procedure.
  • Receipt of short-term, noncash, in-kind emergency disaster relief.
  • Public health assistance such as immunizations, Special Supplemental Nutrition Program for Women, Infants and Children, and for testing and treatment of symptoms of communicable diseases.
  • Programs, services or assistance, such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by federal law or regulation that satisfy all of the following:
    • Deliver in-kind services at the community level, including services through public or private nonprofit agencies.
    • Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance on the income or resources of the individual recipient.
    • Are necessary for the protection of life or safety.
    • Prenatal care.
    • Child protective services and adult protective services and domestic violence service workers.

The Harboring Provision

Among other things, Section 13 of the new law makes it unlawful for a person to do any of the following, (if the person knows or disregards the fact that the alien’s presence in the U.S. is unlawful)

  • Conceal or harbor (or attempt to or conspire to) an alien from detection in any building or means of transportation.
  • Transport (or attempt to or conspire to) in this state an alien “in furtherance of the unlawful presence of the alien in the U.S.”
  • Harbor an alien by renting him a home, apartment or sleeping place.

The new Alabama law does not define the term “harbor” so it must be given a common meaning. Black’s Law Dictionary says the verb “harbor” may be “aptly used to describe the furnishing of shelter, lodging or food.”
Any violation is a Class A misdemeanor (the highest class) “for each unlawfully present alien” and “10 or more aliens” is a Class C felony. Class A misdemeanors are punishable by up to one year in jail and fines of not more than $6,000.00. A Class C felony is punishable by one to ten years in jail and a fine of not more than $15,000.00.
A reasonable interpretation is a person can only be guilty of this section if he or she is attempting to aid or promote the concealment from detection or the unlawful presence of the immigrant in the U.S. That is the issue that must be examined regarding the rendition of service to “the least among us.” Are the actions of the service providers done with the prohibited intent? Probably not, but it certainly chills the charitable spirit.

Legal Challenges to Alabama’s Immigration Law

Given that Alabama’s immigration law is considered the strictest in the country, it is not surprising that lawsuits challenging the law followed soon after its enactment. Three federal lawsuits and one state lawsuit have been filed to challenge Alabama’s immigration law.

  • The first federal action – brought by several civil rights groups, including the Southern Poverty Law Center, the Hispanic Interest Coalition of Alabama, the ACLU and the National Immigration Law Center – seeks to block enforcement of the law before its September 1st effective date.  These groups complain, among other things, that the law will result in racial profiling by law enforcement officers allowed to arrest or detain individuals about whom they have a reasonable suspicion as to their immigration status.
  • A second federal lawsuit was filed on August 1, 2011, by several religious groups who argue that the law “makes it a crime to follow God’s command to be Good Samaritans,” interfering with their religious beliefs in violation of the First Amendment.
  • The U.S. Justice Department filed a challenge against the Alabama immigration law on August 1, 2011, arguing that it conflicts with federal law and undermines federal immigration policies.

These lawsuits were consolidated into one action before the federal court, and the parties have asked the court to issue a preliminary injunction to stop the law from going into effect.  U.S. District Judge Sharon Blackburn in Birmingham will hear arguments on that motion on August 24, 2011.
The state lawsuit pending in Montgomery County Circuit Court seeks a declaratory judgment from the court that the State’s immigration law is unconstitutional.  Undocumented individuals filing the action have asked the court to stay the proceedings pending a ruling in the consolidated federal lawsuit, and the court has scheduled a hearing on the request for a stay on September 7, 2011.

The Likely Future of Alabama’s Immigration Law

Many believe that at least portions of the law will stand and require compliance.  The provisions considered most susceptible to a successful legal challenge are those that:

  • Give police greater authority to investigate immigration status;
  • Criminalize knowingly giving an illegal immigrant a ride; and/or
  • Require schools to verify the number of undocumented students enrolled.

The criminal measures in the law will likely be found to be preempted by federal immigration law.
Most of the provisions expected to survive legal challenge are those that most directly affect employers in the State. It is expected that the E-Verify mandate and the prohibition against employers knowingly employing illegal immigrants will remain the law in Alabama and require employers to comply.  Penalties relating to the suspension and revocation of business licenses are also expected to pass muster in the courts.  Those provisions of the State’s immigration law have not been directly challenged and are likely to become effective as scheduled in 2012.

How Employers Can Prepare

Employers should begin proactive steps now to ensure they are ready when the applicable effective dates arrive.  Employers should perform self-audits to be certain their I-9 forms are in good order and should review their policies for the completion of I-9 forms by employees and their employment authorization process generally.    One way that an employer can be determined to be aware of an employee’s illegal status is by failing to timely or correctly complete an I-9 for an employee within three days of employment.
Employers should register, learn about and start using E-Verify.  There is no reason to wait.  Given that many provisions of the immigration law will be clarified further by rules and regulations that have not yet been drafted, it is a good idea to plan for uncertainty – both in understanding the law and from the workforce generally.  Businesses should also take time to examine and revise subcontract arrangement to be sure those are in compliance with the State’s immigration law.
For an overview, visit Federal Immigration Law Requirements.
The information contained herein, as well as in materials linked to this information, provides highlights of a particular law or legal issue.  It is not intended to be, and should not be construed as, legal advice for any particular fact situation.  If you have questions about any of this information or would like to discuss a particular fact situation, please contact one of the authors.
Maxwell H. Pulliam
David B. Walston
Leslie A. Allen
 
 
 

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