With all the media attention surrounding the Arizona decision on June 25, by the United States Supreme Court, all of the provisions of the Alabama Immigration Laws concerning the mandated E-Verify provisions contained in HB658 Act 2012-491 and HB 56 Beason-Hammon Alabama Taxpayer and Citizen Protection Act are completely unaffected by the High Court's decision.

As of April 1, 2012, every employer in the State of Alabama who has one or more employees working within the state had to be enrolled in E-Verify and utilize that system for every new hire.

There are stiff business penalties, not criminal penalties, for those employers in the state of Alabama who choose to employ someone not lawfully in the United States.

The court gave a clear nod of approval to its prior decision in Chamber of Commerce of the United States of America v. Whiting (May 23, 2011), wherein it gave Arizona a green light to condition the granting of business licenses and privileges in the State of Arizona to those employers who enrolled in E-Verify and also persons showing lawful status.

A re-reading of that decision is most helpful. See: Supreme Court Gives States Green Light on Immigration Enforcement (O&A News May 27, 2011).

Additionally, because of the Whiting decision, the privilege to engage in a business transaction in the state of Alabama, which HB658 labeled “public records transactions” (applying for or renewing a motor vehicle license plate, applying for or renewing a driver’s license or non-driver identification, or applying for or receiving a business license, applying for or renewing a professional license) may require the showing of lawful status or E-Verify enrollment by an employer who is a business entity.

However, that is far from a settled issue because Section 31-13-29 of HB658 contains a Class C Felony provision for an unlawful alien's attempt to secure such a document, or for someone helping them, which may be held to “infect” the business privilege saving clause in Whiting. These are issues which will be submitted to the 11th Circuit Court of Appeals on July 6, 2012.

Common sense counsel

Conduct your own court analysis. Overlay the Whiting and Arizona Supreme Court decisions with each section of HB658 and HB56 to determine does it: 1.) fall squarely within the federal immigration act savings clause as a state licensing, or similar provision, not otherwise in conflict with federal immigration law; 2.) impose a criminal or civil sanction that might interfere with or supplement the federal law; or 3.) fall within the broad scope of the federal government’s pre-emption of the field of immigration.

EDITOR’S NOTE —Tommy Eden is a Lee County, Ala., native and attorney with Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law, and has presented throughout the state of Alabama on Immigration Workplace Compliance. Tommy can be contacted at tme@chlaw.com Links to all Alabama Acts and Supreme Court Decisions, E-Verify webinars, training links and resources are at www.immigrationalabamalaw.com.

This summary is for educational purposes only and does not constitute legal advice. “No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”