Governor Bentley Signs Amended and Revised Immigration Bill Into Law
Notwithstanding his threat to veto the amended and revised immigration bill, Governor Bentley signed it into law on Friday night. You can review HB56, last years law my prior blog posts of June 12, 2011 and August 25, 2011. The new law is EFFECTIVE IMMEDIATELY. As it applies to employment issues, the law makes the following changes:
Section 31-13-3(2), defining a Business Entity, now reads, in part, (with the new language underlined): Any person or group of persons employing one or more persons...."
Section 31-13-3(10)(d) now permits the use of a valid Uniformed Services Privileges and Identification Card as proof that the person is in the US lawfully.
Section 31-13-3(14) defines a State-Funded Entity, (with the addition underlined) as "Any governmental entity of the state or a political subdivision thereof or any other entity that receives any monies from the state or a political subdivision thereof; provided, however, an entity that merely provides a service or a product to any governmental entity of the state or a political subdivision thereof, and receives compensation for the same, shall not be considered a state-funded entity." This resolves many of the paperwork problems that suppliers, such as restaurants for catering purposes, or providers of office supplies had under the old law.
Section 31-13-15 now defines a Subcontractor as: "A person, business entity or employer who is awarded a portion of an exiting contract by a contractor, regardless of its tier."
Section 31-13-5(2)(f) added the language "of which the person has knowledge" to the requirement every person working for the state or political subdivision thereof has an obligation to report violations of unlawful aliens being in the state.
Section 31-13-9(a) now reads: As a condition for the award of any contract, grant or incentive by the state.....the business entity or employer shall not knowingly employ, hire for employment or continue to employ an unauthorized alien within the State of Alabama". The requirement of an affidavit has been removed.
Section 31-13-9(b) also adds the requirement that the employee must be within the State of Alabama.
Section 31-13-9(c) addresses "any subcontractor on a project paid for by contract, grant, or incentive by the state...shall not knowingly employ, hire for employment, or continue to employ an unauthorized alien with the State of Alabama..."the subcontractor "shall participate in the E-Verify program and shall verify every employee that is required to be verified according to the applicable federal rules and regulations" during the performance of the contract.
Section 31-13-9(d) has been amended to read in it's entirety: "A contractor of any tier shall not be liable under this section when such contractor contracts with its direct subcontractor who violates subsection (c) unless it is shown that the contractor knew or should have known that the direct subcontractor was in violation of subsection (c)."
Section 31-13-9(e)(1) sets forth in detail the penalties for the first time a business entity or employer, including a subcontractor, violates this section. The penalties for a first time offense include the termination of every unauthorized alien, subjecting the business to a 3 year probationary period throughout the state, during which time the employer must file quarterly reports with the Department of Industrial Relations of each new employee hired, submit a signed sworn affidavit to DIR withing 3 days of the court order confirming that every unauthorized alien has been terminated and that the business will not knowingly or intentionally employ an unauthorized alien in Alabama. If the court finds the employer to be in violation of this section, the court shall order the appropriate licensing agency to suspend the business licenses or permits at the location where the unauthorized alien worked for a period not to exceed 60 days. Before a business license can be reinstated, the employer must provide an affidavit stating that it is in compliance with the law and is enrolled in E-Verify.
Section 31-13-9(e)(2) sets forth the penalties for a second violation within 10 years. The penalties include the termination of every unauthorized alien, and a five year probationary period, during which time quarterly reports must be filed with DIR. The employer must file an affidavit within 3 days that the unauthorized alien has been terminated and that the employer will not knowingly or intentionally employ an unauthorized alien in the state. The business licenses and permits SHALL be suspended for a period no less than 60 days and not to exceed 120 days at the location the unauthorized alien performed work. An affidavit must be submitted before a business license or permit can be reinstated that it is in compliance with the law and enrolled in E-Verify. If the violation occurs after 10 years, it shall still be considered a second violation, although punished as if a first.
Section 31-13-9(e)(3) deals with a third violation. A third violation shall result in any state funded contract being terminated, and the business licenses or permits shall be permanently revoked.
Section 31-13-9(f)(2) provides that a business entity or employer enrolled in E-Verify and who used the program "shall not be liable under this section for violations resulting from the hiring of that employee".
Section 31-13-13(a)(4) provides that it shall not be a violation for a "religious denomination having a bona fide nonprofit religious organization in the United States, ...to encourage, invite, call, allow, or enable an alien who is present in the Untied States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who in not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year".
Section 31-13-23(a) provides that the Alabama Department of Homeland Security file an annual report, as opposed to a quarterly report, with the legislature on the status of the progress being made in the effort to reduce the number of illegal aliens in Alabama.
Section 31-13-23(b) requires the ADHS to "create a mechanism for receiving tips from the general public regarding possible violation of this chapter, including the unlawful enforcement of this chapter."
Section 31-13-26 provides that contracts entered into between a party and an alien unlawfully present in the US, "if the party had direct or constructive knowledge that the alien was unlawfully present..." shall not be enforced by any court in Alabama. Contracts entered into prior to the effective date of the act are not subject to this language.
Section 31-13-29 defines "public records transaction"as "applying for or renewing a motor vehicle license plate, applying for or renewing a driver's license or nondriver identification card, or applying for or renewing a commercial license, or applying for or renewing a professional license. Public records transaction does not include applying for a marriage license, any transaction relating to housing under Title 24 or the ownership of real property...or the payment of any other tax to the state or political subdivision thereof...". An alien unlawfully present in the US "shall not enter into or attempt to enter into a public records transaction...".
I believe that this new law will result in some additional lawsuits, similar to the ones filed last year, contesting the constitutionality of numerous provisions. I expect that the courts will enjoin those sections that they have previously enjoined, and the 11th Circuit has stated previously that it will not rule on the merits until after the US Supreme Court rules on the Arizona law, which is expected some time this summer. Since the law is effective immediately upon signature of the the Governor, I anticipate the lawsuits will be filed shortly. I will continue to update the status of the new law as these cases wind their way through the courts.
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