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Caroline Fan on June 23, 2009 - 1:51pm
While immigration continued to be debated in states across the country this session, most anti-immigrant bills were defeated and more positive approaches to new immigrants were debated. Even in sessions dominated by budget crises, positive policies were enacted in many states.
Overall, budget deficits throughout the states meant that most legislatures shied away from bills with any fiscal costs, whether for positive or regressive policies. With recognition that problems of the economy derived from lawless behavior among the financial elite, immigration became less of a wedge issue in most of the states. And an increasingly bitter and divisive tone by anti-immigrant politicians pushed even some allies of the anti-immigrant movement to take a step back.
States like Iowa and Utah that fought to include health care for undocumented children came close, but they ultimately fell short (although Iowa did increase income levels for inclusion in SCHIP, ultimately it left out undocumented kids). Overall, states held the line or advanced the dialogue around immigration, with pro-immigrant legislators defeating bad bills by larger margins such as in Kansas where they failed to repeal their DREAM Act and in Rhode Island where the attempt to institute E-verify for private employers was defeated. And a number of states enacted new laws to better enforce wage laws as a far better approach to cracking down on the low-wage, underground economy.
Some punitive bills passed such as Idaho's SB 1110, which requires all public agencies to verify the immigration status of individuals seeking public benefits and was passed without the Governor’s signature. But budget deficits also worked as an argument for killing punitive bills. A die hard conservative legislator in Tennessee even wound up having to pull his $11 million comprehensive anti-immigrant bill: "We came to ask ourselves, where could we ”¦ do the best thing for Tennesseans during the short time we had, and that was not coordinating a position on illegal immigration," Rep. Tony Shipley said.
Table of Contents:
Eye on the Right: Anti-Immigrant Legislator Network Largely Marginalized
Members of the anti-immigrant State Legislators for Legal Immigration (SLLI) group, such as Texas State Rep. Leo Berman, have found their bills bottled up, even by members of their own party. No votes were even taken on any of his nine anti-immigrant bills, which ranged from English-only to forcing schools to track the immigration status of students. As Berman admitted, “The will is not there to move such a controversial issue,” he said.
Other SLLI legislators have also met with similar inabilities to advance their agenda. In California, Assemblyman Chuck DeVore failed in his attempt to pull a leadership coup against GOP leader Mike Villenes, with zero of 28 Republicans voting in support of DeVore. Nonetheless, DeVore and Berman are pursuing gubernatorial candidacies in their respective states next year.
In Arizona, Sen. Russell Pearce, who is the AZ SLLI contact and the main proponent of right-wing, anti-immigrant bills, chairs the Appropriations Committee, so he has a larger platform for his attacks. In his own description of the bills that he is pushing, he described the current practice of providing workers' compensation to undocumented immigrants as "silly." Earlier, he held a hearing on the costs of undocumented immigrants for his bill on negating sanctuary cities (AZ H2331) and stacked it with testimonials from only those who are not supportive of immigrant rights, such as representatives from anti-immigrant groups FAIR, 9/11 Families for a Secure America, and the Immigration Law Reform Institute, which SLLI relies on for their policy and legal analysis.
Yet even in Arizona, there has been a backlash against wasting legislative time on the issues: the Arizona Republic published an editorial blasting Sen. Pearce for immigrant-bashing and hogging the spotlight instead of fixing the state’s budget deficit:
Mesa Republican Russell Pearce, a formerly marginal legislative "leader" who has made a national name for himself as a no-compromise immigrant-buster, has scheduled a "special hearing" Thursday on his favorite subject. Specifically, the hearings are to consider the "illegal sanctuary policies" of cities and the financial costs that arise from them.In fact, there will be precious little fact-finding or honest debate going on during Pearce's "hearings" on Thursday.
Moreover, the suggestions that Pearce has proposed to drain money from cities and counties have met with stark backlash from the Republican governor.
Progressive States has been publicizing the link between anti-immigrant state legislators involved in SLLI such as Texas State Rep. Betty Brown through a series of op-eds published in several key states. Center for New Community is also working to publicize the links between SLLI, FAIR, and other affiliated groups.
DREAM Act and Immigrant Integration
Budget challenges dogged supporters of the DREAM Act and immigrant integration and naturalization this session, with few legislatures willing to pass bills with any fiscal costs. However, there were some bright spots.
- The Wisconsin legislative budget panel included funding in the state budget for in-state tuition for undocumented college students who have resided in Wisconsin for three years, graduate from a Wisconsin high school or earned an equivalency degree in the state, and pledge to apply for permanent residency visas. The provision impacts about 450-600 students annually, who as eventual members of the workforce, would bring in new revenue.
- Additionally, on a bright note, despite budget cuts and a legislature that moved further Right, both houses in Tennessee passed the SB 1745, which requires the Departments of Labor and Education to establish and monitor a grant program called the "We Want to Learn English Initiative." Largely, this was due to the efforts of groups like the Tennessee Immigrant Rights and Refugee Committee. The bill is now on the Governor's desk awaiting signature.
- In Minnesota, the Governor signed MN S 2081 which funds job-training and coaching for immigrants and refugees, although he line-item vetoed providing assistance to move immigrants off of welfare and onto an economically self-sufficient track.
While new state DREAM Acts to provide in-state tuition for undocumented high school students were not enacted this session, introducing the bills has increased the dialogue about the contributions that immigrant students bring to states and laid the groundwork for moving federal legislation. During Colorado’s efforts to pass tuition equity for immigrant students, freshman US Senator Bob Bennett came out in support of the federal bill. DREAM Acts still on the table include: Oregon H 2939, New Jersey SB 1036 and New York AB 3955.
Major challenges to existing DREAM Acts in the states failed, some quite noticeably. The sponsor of Arkansas HB 1093 pulled his own anti-tuition equity bill. Kansas successfully staved off a challenge to their state DREAM Act, despite Kris Kobach of the Immigration Reform Law Institute’s involvement in drafting bills for legislators opposed to tuition equity, further underlining the relationship with IRLI and SLLI. Some minor restrictive measures passed, such as Idaho's HB 211 which classifies undocumented students in the state as nonresident students, which effectively exempts them from in-state tuition status.
And on a positive note, the new administration is taking a cue from the states and allotting $10 million for the creation of an immigrant-integration office at U.S. Citizen and Immigration Services and grants to community groups that help immigrants naturalize and learn English. States like Illinois, Washington, Massachusetts and New Jersey, which have created Offices of New Americans or which have immigrant integration programs, report increased access to government, leading to increased naturalization and economic mobility.
Local Law Enforcement
Local law enforcement issues were prominent this session as states tried to grapple with how to best uphold public safety and whether or not local law enforcement should take on the role of federal immigration authorities or continue community policing approaches based upon trust and communication with immigrant communities.
A recent Police Foundation report states:
As the role of local police shifts from a concentration on public safety issues to immigration enforcement, the perception that immigrants have of police presence changes from protection and service to arrest and deportation, thereby jeopardizing local law enforcement’s ability to gain the trust and cooperation of immigrant communities... Police departments that opt to enforce federal immigration law should do so in a manner that does not erode their relationship with immigrant communities or subordinate municipal interests to those of the federal government.
The same report finds that of the law enforcement executives polled, immigration ranked dead last in their priorities, but that particularly in newer gateway communities, they were being pushed to "do something" about the immigration issue, particularly as the rate of immigration increased. The vast majority of law enforcement officials did not believe it was appropriate for officers to question witnesses and victims of crimes on their immigration status, while only 17% of agencies checked for the status of witnesses and 15% checked the status of victims.
States that introduced local law enforcement legislation that went nowhere include Nebraska LR 9 and Indiana S 1098 which would have authorized the superintendent of the state police department to sign a memorandum of understanding with the Department of Justice.
Many of the bills that were passed were punitive in nature:
- Arizona S 1001a provides $10 million for state and local law enforcement agencies that agree to sign up for 287g programs with the federal government and to turn over suspected gang members who are thought to be undocumented. This was passed despite the state’s unemployment rate being the highest in the nation, massive budget deficits and disagreement on how to make up lost revenue.
- Georgia SB 20 prohibits sanctuary policies by local government entities.
- Oklahoma S 1102, which was recently signed into law, requires law enforcement to perform DNA tests on undocumented immigrants and other individuals who are arrested, provided there is sufficient funding. OK H 2047 forces the Department of Corrections to provide a list of “foreign born nationals and suspected foreign born nationals” in prison to the INS on a weekly basis.
Additionally, several states passed anti-trafficking bills such as Colorado S 179, HB 123 and North Dakota S2209. Virginia passed an anti-trafficking bill which redefines intimidation to include withholding a person's passport (VA H 2016) and in Mississippi, S 1504 requires the legislature to submit a cost study report on state enforcement of federal immigration laws.
State lawmakers are also striking back at unfunded mandates, as federal authorities increasingly place the burden upon states to manage border control, while proposing to reduce funding for implementation. Secretary of Homeland Security Napolitano stated when she was a Governor that: “Arizonans should get what the federal government owes,” she told reporters. “If you were a business and you had somebody who had a large unpaid bill, you’d bill them and say it’s time to collect.”
E-Verify and Workplace Sanctions versus Progressive Enforcement of Wage Laws
The Failure Rate of E-Verify: Although originally intended to be a catch-all system for the verification of workers' citizenship status, E-Verify has proven to lead to high costs for businesses and employees and to be less than reliable and prone to errors due to inaccuracies government databases and employer misuse of the system. The system has wrongfully identified US citizens and legal permanent residents as being ineligible for employment, leading to increased delays in hiring. The Chamber of Commerce concluded in a 2008 peer review that the net societal costs of implementing E-verify just for federal government contractors alone would be $10 billion a year, to say nothing of state contractors and private employers.
And despite the much publicized attempt to get Arizona employers to verify the immigration status of workers through the E-Verify database, only 15% of employers in Arizona actually use the program, leading US Rep. Gabrielle Giffords of Arizona to call for scrapping the system entirely. E-verify allows companies to compare workers’ documents for employment eligibility against federal databases from the Department of Homeland Security and the Social Security Administration. While intending to stop the employment of undocumented immigrants, E-Verify may also prevent legal residents who lack documentation from working and could conversely drive more undocumented workers deeper into the underground economy, according to a report by the Congressional Budget Office. Legislatures have been debating whether or not to implement the program in their states and Minnesota just held a hearing on the results of Gov. Pawlenty's E-verify executive order.
Legislative Debate on E-Verify: Bills on using E-Verify were introduced and died in Colorado (SB 23), Nebraska (LB 34), and West Virginia (which would have added deadlines for E-verify usage and increased the scope of employers to state contractors and all employers.)
An E-verify vote in the Rhode Island House, which had passed with large margins in previous years, shrank down to a 5 vote margin with twice as many legislators voting against it this year as in previous years, leaving some to wonder if it could have been defeated. Notably, the Speaker Pro Tempore who had voted for the bill in previous years changed her mind, citing the program's numerous errors. Moreover, Indiana S 580, which was called one of the toughest immigration bills in the country, failed. It called for increased reporting requirements for a first offense, license suspensions on a second violation and a third offense could put a company out of business.
Meanwhile, Ohio SLLI representative Courtney Combs is pushing an unpopular E-verify bill (HB 184) in that state. Other E-verify bills that remain on the table for this year include Oregon HB 3215, Rhode Island HB 5143, and North Carolina S 337. North Carolina's far-ranging S 337 has fortunately not moved; it would require counties and cities to use e-verify, prohibit undocumented students from enrolling in colleges and universities, and expand the definition of identity theft to include using a social security number for work purposes.
Legislative disappointments occurred in Nebraska and Utah. Nebraska LB 403 passed and was signed into law in April. It uses E-verify to scan for eligibility for public benefits (a law which was signed by Nebraska Gov. Heineman). Utah SB 81, which was approved last session, will take effect on July 31st. It implements E-verify among other punitive provisions. Utah S 39, which was signed this year, added to SB 81's provisions by forcing all state contractors and subcontractors to use the program. Meanwhile, Utah SCR 1 would grant the state waivers to establish an employer-sponsored work program and withhold federal FICA and Medicare revenue, redistributing it toward addressing undocumented immigration.
Especially at a time of reduced state budgets, the high costs to workers and employers and significant error-rate of E-verify are too great a barrier for states to use it as a filtering mechanism to determine resident benefit eligibility, much less to screen potential employees.
The Wage Law Enforcement Alternative: Those who are truly interested in ensuring good jobs would be better served by advancing wage enforcement and worker misclassification laws. Notable successes this term included the enactment of NM H 489 and MD S 909, which will keep labor standards high for all workers, including immigrant workers, and maintain a level playing field for employers who follow the laws and pay their workers and taxes properly. Colorado Gov. Bill Ritter also signed HB 1310, which creates an Office of Employee Misclassification to investigate employers who misclassify employees as independent contractors to avoid paying employment and other state taxes. The bill also authorizes the state to collect back taxes and interest from the employer and to impose related fines, generating some revenue for the state in uncollected taxes and fees. Additionally, after the release of New Jersey's Blue Ribbon Panel on Immigrant Integration, lawmakers in that state changed a punitive bill to one that reflects the report's priorities of wage enforcement and addressing employee misclassification.
Legislative opportunities to act this session include:
- North Carolina: HB 87 to establish additional wage and hour law enforcement positions.
- Pennsylvania H 400 regarding employee misclassification in the construction industry, granting the Attorney General the ability to prosecute for violations, and specifying employers fines of $1000 per day for violations of stop work orders.
- Oregon H 2890 on worker misclassification and allowing the Bureau of Labor and Industries to investigate employers and subpoena documents related to employee misclassification.
Wage enforcement and cracking down on employee misclassification has been a revenue generator in states, and is a trend that is on the rise.
NILC - E-verify factsheet on Employers and the Economy
Progressive States Network - E-verify: An Economic Burden to Businesses and State Budgets
Progressive States Network - Promoting Wage Enforcement Laws as an Alternative to Anti Immigrant Bills
Protecting Workers Rights by Stopping Misclassification as Independent Contractors in Maryland
Drivers Licenses and Identification
There continued to be a high number of bills introduced relating to driver's licenses and identification as some states tried to comply with federal REAL ID laws despite it being an unfunded federal mandate. Meanwhile more than 23 states have rejected REAL ID measures. For immigrant drivers who seek to follow the law, California (SB 60) and Wisconsin are among the states looking at implementing a two-tiered system that would still allow immigrants who are unable to document their status to drive to school, work, and church. In Wisconsin, the two tiered system was included in the state budget proposal, which includes the creation of non-citizen identification cards that grant driving privileges to state residents, including undocumented Wisconsinites. The cards would only allow carriers to drive but would not allow them other benefits such as boarding an airplane.
Meanwhile, one of the more heartbreaking losses this session was the Maryland legislature's decision to rollback driver's licenses for undocumented immigrants. Currently immigrants in the state who cannot provide documentation have the ability to obtain the same driver's licenses as anyone else. The compromise bill allows those who already have licenses to renew until 2015, but the licenses will be marked "not federally compliant."
Restrictive licensing bills failed to move in Nebraska LB 229, while Arkansas H 1860 was passed and signed. It limits the period of validity for driver's licenses issued to undocumented immigrants. In a separate bill, Arkansas also moved closer to REAL ID by implementing voluntary “enhanced security” identification cards. Fortunately, Arkansas State Rep. Sample withdrew his proposed HB 1093 to force employers to use E-verify Social Security numbers (SSNs) before providing employee IDs. It would have applied to state agencies, local governments, businesses and universities even though universities already have to run student SSNs through a separate database.
Other punitive measures that passed include Tennessee SB 294, which makes it a misdemeanor to knowingly provide, transfer, or submit to any other person false identification in order to gain or maintain a job, and Utah S 40, which was signed and chaptered by the Governor and requires verification of legal residency in the US in order to obtain a drivers' license.
Bills still on the table include New York AB 6747 (to enact a MOU between the state attorney general and the US Dept. of Justice) by SLLI member Assemblyman Greg Ball.
Police Foundation’s report, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, covers the local law enforcement of federal immigration law including recommendations to beef up anti-racial profiling laws and to implement procedures for monitoring and enforcing racial profiling violations.
Applied Research Center has a new report out on race and the economy: Race and Recession: How Inequity Rigged the Economy and how to Change the Rules.
America's Voice commissioned a recent poll on changing attitudes on immigration reform, finding that moderates and conservatives are moving towards support.
NAKASEC has a new resource out on how Korean Americans are impacted by comprehensive immigration reform.