Utah s Immigration Legislation: A Closer Look at Utah's New Laws to Employ Immigrant Workers

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1 Utah s Immigration Legislation: A Closer Look at Utah's New Laws to Employ Immigrant Workers By: Natalia Ricardo and Karen Herrling On March 15, 2011, Governor Gary Herbert of Utah signed into law three bills that were recently passed by the Utah legislature. The first measure (HB 497) is an immigration enforcement bill similar to Arizona's SB The second bill (HB 466) authorizes Governor Herbert to enter into a memorandum of understanding with the Mexican State of Nuevo Leon to facilitate applications for migrant workers to come to the U.S. and work for Utah businesses. The third bill (HB 116) is a comprehensive bill that, among other things, creates a state-run guest worker program in Utah and imposes a series of new employment eligibility verification requirements on employers. Below is a summary and analysis of the sections in HB 466 and HB 116, which are bills that attempt to provide Utah businesses with an immigrant workforce. In the interest in time and space, we did not analyze all 40 sections of HB 116 but instead focused on the sections that discuss the employment of undocumented workers through a permit program. HB 466: Utah Commission on Immigration and Migration Act Section 1: Title This bill is called the "Utah Commission on Immigration and Migration Act." Section 2: Definitions This section defines a number of terms such as: commission, migrant worker, pilot project, pilot project memorandum of understanding (MOU), state agency, and U.S. nonimmigrant visa. Section 3: Creation of Commission This section creates an advisory commission known as the "Utah Commission on Immigration and Migration" [hereinafter "Commission"]. It discusses the composition of the Commission and who will staff it. Section 4: Powers of the Commission This section outlines the powers and duties of the Commission. Some of the notable powers of the Commission include: (a) conduct a review of the economic, legal, cultural and educational impact of illegal immigration on the state and its political subdivisions; (b) conduct a thorough examination of Utah and federal law in relation to immigration, migration and guest worker programs; (c) develop a comprehensive, coordinated, and sustainable state plan to address immigration and the use of migrant workers in the state and integration of immigrants; (d) make recommendations to the governor and the Legislature on how to implement the state plan; (e) and advise the governor and the legislature on proposed immigration legislation.

2 Section 5: Collaboration on integration of immigrants This section encourages the Commission to: (a) work collaboratively with federal, state and local governments to help with the integration of immigrants; (b) work collaboratively with businesses and community organizations to ensure public input with regard to integration of immigrants. It also requires the Commission to evaluate the structure and organization of governmental bodies in Utah and advise the Legislature and governor on how best to achieve immigrant integration in the delivery of services and programs in a cost neutral manner. Section 6: Migrant Worker Visa Pilot Project This section provides for the creation of the Migrant Worker Visa Pilot Program. Subsection (1) states that the governor may negotiate and enter into a MOU with the government of the State of Nuevo Leon, Mexico, through its Migrant Attention Center, to create a pilot project known as the Migrant Worker Visa Pilot Project. Through this pilot project, Utah businesses may obtain legal foreign migrant workers through use of U. S. nonimmigrant visas. Subsection (2) states that the Commission must recommend to the legislature and the governor policies and programs that will educate, encourage, support, and facilitate the participation of Utah businesses in the pilot project. Section 7: Requirements for pilot project and memorandum of understanding Subsection (1) provides that under the MOU, the governor can commit the state, including the Commission, to work directly with officials of the government of the State of Nuevo Leon to encourage, facilitate, and support the migration of legal Mexican migrant workers from the State of Nuevo Leon to Utah to Utah businesses. Subsection (2)(a) provides that the pilot project and MOU must be compatible with the INA and federal policies, procedures, and requirements for issuing U.S. nonimmigrant visas to Mexicans qualified to participate in the pilot project: (i) a Utah business hiring a worker through the project must demonstrate and certify that there are not sufficient workers where that labor is to be performed who are able, willing, qualified, and available at the time of application for the visa; and, (ii) the worker will not adversely affect the wages and working conditions of workers in Utah who are similarly employed. Subsection (2)(b) requires the State of Nuevo Leon to provide Mexican migrant workers to Utah businesses who meet certain requirements like a criminal background check, standardized testing, and a tamper-proof identification with specific information. The State of Nuevo Leon is also responsible for notifying businesses, Immigration and Customs Enforcement, and others if migrant workers do not return to Mexico when their visas expire. Section 8: Commission advisory group to conduct study and prepare recommendations This section provides that the Commission will create an advisory group to perform a series of studies about the implementation of the project, how the project impacts federal law and the ability to meet the needs of Utah businesses, etc. The advisory group will report its findings to

3 the Commission on an annual basis. The Commission will use the information to make recommendations to the governor. Section 9: Expansion of similar pilot projects This section gives the governor authority to enter into one or more pilot projects if he determines that the original pilot project was successful. Analysis of HB Migrant Worker Visa Pilot Project: This law will likely be deemed unconstitutional because the governor of Utah does not have the constitutional authority to enter into a MOU with the Mexican state of Nuevo Leon to bring in guest workers to work for Utah businesses. Indeed, HB 466 conflicts with the U.S. Constitution and federal law. The U.S. Constitution, Article I, Section 10 states the following (emphasis added): No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. As clearly provided above, " [n]o state shall... enter into any agreement or compact with another sate, or with a foreign power...". The U.S. Constitution gives the President the power to negotiate with and to enter treaties and other agreements with foreign nations. Thus, the governor of Utah does not have the requisite authority to engage in negotiations and to authorize an agreement with the state of Nuevo Leon, Mexico to issue work visas to Mexican workers. In addition, the power to grant or deny work authorization and issue visas to immigrants is within the sole purview of the federal government as set forth in the federal laws regulating and enforcing immigration, which are codified in the Immigration and National Act (INA). Thus, H.B. 466 also is unconstitutional because the governor of Utah does not have the authority to regulate immigration -- this is a function that is reserved exclusively to the federal government. In summary, HB 466 attempts to set up a pilot project whereby workers from Mexico can come legally to Utah to work for Utah businesses. Because the pilot project, as constituted, is not compatible with the Constitution, the INA, and other federal policies, it is unlikely that the law will be deemed constitutional. Therefore, it is unlikely that Utah will be able to implement its Migrant Worker Visa Pilot Project. HB 116: Utah Immigration Accountability and Enforcement Amendments

4 This is a comprehensive law that includes 40 sections. A vast number of these sections amend current Utah laws. Other sections enact new provisions. As noted earlier, this analysis will address the new enactments concerning the creation of a guest worker program. Section 10: Department of Public Safety to create guest worker program Subsection (1) provides that the Department of Public Safety [hereinafter the "Department"] must administer a program known as the Guest Worker Program. Under this program, the department must: (a) seek one or more waivers, exemptions, or authorizations to implement the program; (b) issue a permit, (c) establish fees, (d) take action for enforcement, and (e) report annually to the governor and the legislature. Section 11: Federal waivers, exemptions, or authorizations Subsection (1) provides that the department must seek one or more federal waivers, exemptions, or authorizations to implement the program. Subsection (2) states that the governor must actively participate in the effort to obtain one or more federal waivers, exemptions, or authorizations. Subsection (3) sets forth that the department must implement the program the sooner of 120 days after the day on which the governor finds that the state has the one or more federal waivers, exemptions, or authorizations needed to implement the program, or July 1, Section 12: Coordination with other federal or state laws Subsection (1) provides that the Department of Public Safety must coordinate the implementation of the program with other existing state and federal laws that relate to immigration and labor including laws about driving and reporting citizenship status. Subsection (2)(a) discusses the mechanisms and means for employers to withhold state and federal income and employment taxes from guest workers. Subsection (3) sets forth that the Department must facilitate the use of other employer based work programs that meet the needs of Utah employers by using workers who are not working in Utah and who are not U.S. citizens. Section: 13: Obtaining a permit This section provides that an undocumented person must obtain a permit before being hired by a person or no later than 30 days from the date of hire. This permit is considered identification and can be used for poof of the individual's age for any state or local government program. Section 14: Eligibility criteria for guest worker permit To be eligible to obtain or maintain a guest worker permit an undocumented individual must be: 18 years of age or older, or if younger than 18 years of age have the permission of a parent or guardian, live in Utah, have worked or lived in the U.S. before May 10, 2011, provide relevant contact information and regularly update the contact information, provide documentation of a contract for hire under which the undocumented individual begins to provide services within at least 30 days of the day on which the undocumented individual obtains the permit,

5 agree to a criminal background check, and not have been convicted of or pled guilty to a serious felony, provide evidence to the Department that the undocumented individual would not be inadmissible on public health grounds show that individual is covered by a basic health insurance plan, or provide evidence satisfactory to the Department that the individual has no medical debt that is past due and agrees to have no medical debt that is past due during the term of the permit, and hold a driving privilege card or show that the individual will not drive a vehicle. Section 15: Eligibility to obtain and maintain an immediate family permit This section states that the eligibility to obtain or maintain an immediate family permit, an undocumented individual must: live in Utah, be a member of a guest worker s immediate family, and provide relevant contact information and regularly update the information. Sections 16 through 21 These four sections all involve the permit. They discuss the application and renewal process for the permit (Section 16), the conditions that must be maintained to have a permit (Section 17), the requirement to become proficient in English (Section 18), the requirement to develop a verification procedure similar to the E-Verify program that can verify that the permit is valid (Section 19), the prohibited conduct by a permit holder (Section 20), and the requirement to share information with Utah's attorney general and ICE if the undocumented individual's permit is revoked or the permit has expired (Section 21). Analysis of HB 116 This law, as currently constituted, cannot be implemented because the issuance of visas and work authorization are within the sole purview of the federal government. In addition, at this juncture there is not a process or procedure in place for states to seek a "waiver" allowing the state to create its own guest worker program. Also, it is unlikely that the federal government would pass legislation (or if constitutionally foreclosed, amend the Constitution) to relinquish its power to regulate the admission, detention, and expulsion of immigrants. Further, Section 10 of HB 116 represents an invalid assertion of state power because it allows the guest worker program to go into effect on July 1, 2013, if the governor is unable to obtain a waiver from the federal government. While HB 116 asserts that it will coordinate with federal and state laws to comply with immigration laws, the law s mere passage undermines the federal authority to regulate immigration. Also, Section 12, Subsection (3) notes that there are already employer based work programs in existence. This law underscores the need for these existing federal programs to be updated, improved and included in the federal government s efforts to achieve comprehensive immigration reform. While some of these sections of the law may seem innocuous, in fact, they are troubling. Among other things, this law requires permit holders to provide contact information and regularly update

6 this information. Immigrant advocate groups are concerned that stringent requirements for a permit coupled with the stringent requirements to maintain contact information may result in undocumented individuals becoming more vulnerable to immigration proceedings and possibly deportation. In summary, HB 116 is not a viable solution for immigrant workers in Utah because it is unlikely to be implemented given that Utah lacks the authority to grant work authorization documents to undocumented immigrants. Moreover, even if such a program is allowed to exist, workers will not have a path to legal status and may be susceptible to enforcement proceedings because of requirements of collecting and sharing guest workers information with other agencies. This document was prepared in April 2011 by Karen Herrling and Natalia Ricardo. For questions, please contact CLINIC s State & Local Advocacy Attorney Karen Siciliano Lucas at klucas@cliniclegal.org or (202)