State Immigration Review

Introduction: The Anti-Immigrant Year That Wasn't

As most of the last legislative sessions grind to an end, we can take a step back and make a few conclusions about what happened in the states on policies effecting the immigrant population:

• In a few states where the right-wing controlled the legislature, they jammed through some bad laws creating punitive sanctions against undocumented immigrants.
• However, in states where moderates or progressives had any significant influence, the momentum for anti-immigration legislation stalled and almost all anti-immigrant legislation failed to pass. 
• In the largest states where most undocumented immigrants actually live -- California, Illinois, New York, Texas and Florida -- no significant anti-immigrant legislation was enacted this session or last.
• Largely ignored by the media, quite a few states are pioneering programs and laws to positively integrate new immigrants into our communities and address citizens' economic fears in ways that raise wage standards for everyone, immigrant and native worker alike.

Slowly, as the session went on, we began to see the media catching on to this reality with headlines like "States think smaller, slower on immigration" and "Cooling off: Immigration efforts slow a bit."  Bad bills were stalling in most states as legislators realized that the politics of immigration was not as simple as the rightwing was promoting.

Real Solutions, Not Scapegoating, Begin to Win the Public Debate:  One reason bad legislation stalled is that legislators and the public increasingly recognized that scapegoating immigrants was not going to solve the economic pressure working families are experiencing.  The real problem is a far more pervasive one of employers violating the workplace rights of all workers, both native and immigrant.  As multiple states began to consider significant new penalties for employers violating minimum wage and other labor rights, many of the right-wing politicians who had previously talked so eloquently about the suffering of workers due to the immigrant onslaught suddenly backed away from their supposed concern about illegal employer activity.  With lobbying by more responsible business leaders deploring the distraction of the anti-immigrant debate away from the real needs of state economies, you had a recipe for the stalling of anti-immigrant legislation in multiple states across the country.

This State Immigration Project Update will highlight what legislation did and didn't pass, as well as point to positive proposed bills that show the way legislators and advocates should look to shape policies in the 2009 legislative session.

Countering the Culture of Fear in Comprehensive Bills

In past sessions, comprehensive anti-immigration bills such as Oklahoma’s HB 1804 and Georgia’s SB 529 provided loud rallying cries for the rightwing as examples of what states should do to crack down on undocumented immigration.

Yet in 2009, despite the hype and the introduction of significant anti-immigrant bills across the country, the only comprehensive anti-immigrant bills enacted were in the rightwing-dominated legislatures of Utah (SB 81), South Carolina (HB 4400), and Missouri (HB 1549).  Even those bills, while largely anti-immigrant, had a few positive provisions. Missouri's HB 1549 criminalizes the exploitation of immigrants through illegal trafficking and requires OSHA training for certain employees on public works projects, and South Carolina's HB 4400 regulates “notorio fraud.”  

In Utah, a provision to revoke undocumented immigrations from qualifying for in-state tuition rates failed to be included in SB 81.  Failed comprehensive bills include Indiana SB 345, Kansas SB 458, and North Carolina HB55/SB 1189 and HB 1485, and Wyoming HB 62.

Demanding Federal Responsibility on Immigration Reform: This session a number of states also sent a message that they were unwilling to assume the financial and political responsibilities of comprehensive immigration reform, calling on the federal government to resolve immigration issues on a national level and to reimburse the states for current efforts.

• The District of Columbia passed two bills calling for comprehensive federal reform, PR17-0469 and PR17-0470.  Similar proposals not enacted included Arizona HCM 2011; Minnesota SF 886 and HB 771; Oregon HJM 24; and Virginia HJR 125, SJR 93, and SJR 120.
• Other states introduced bills requesting federal reimbursement for state immigration-related expenses, including Arizona HCM 2011, Minnesota SF 886 and HB 771, Oregon HJM 24, Virginia SJR 120, and South Carolina HR 4347.  New Mexico successfully passed HJM 3.
• Three states enacted bills requesting that the federal government establish a worker program.  See New Mexico HM 15, Vermont SJR 22, and Alabama SJR 38.  Similar bills were proposed in Michigan (SR 96 and HR 183).
• Colorado passed the controversial HB 1325, establishing a five-year non-immigrant agricultural seasonal worker pilot program to expedite the application and approval process for federal H-2A visas.  Due to work by pro-immigrant groups like the Colorado Immigrant Rights Coalition, the bill contains positive anti-retaliation provisions and no longer withholds 20% of worker wages until they return to their home countries.  Yet, the bill perpetuates many of the other workers' rights problems associated with the current H-2A program.
• Mississippi passed HCR 32, requesting enforcement of current immigration laws.

Several states passed bills requesting that the federal government emphasize humane immigration policies.  New Mexico HM 15 requests an immigrant worker program that will prevent the unnecessary loss of life for undocumented workers and provide for worker safety. DC PR17-0469 requests a policy to ease apprehension in the immigrant community following local measures subjecting immigrants to additional scrutiny.  California AJR 61 urges an investigation of ICE practices (this bill is still active).  There were a few examples of less immigrant-friendly resolutions for federal reform that passed in 2008, including Alabama SJR 38, Arkansas HR 1003, Georgia SR 646, Idaho SJM 111, Louisiana HCR 63, and Utah SR 3 and SCR 5.

Wage Law Enforcement vs. Punitive Anti-Immigrant Sanctions

Despite the proliferation of bills providing employer sanctions and requiring employers to use the federal E-verify program to check an employee’s immigration status, states passed a number of bills strengthening the enforcement of wage laws, fighting the misclassification of workers as independent contractors, and criminalizing human trafficking.

• Massachusetts SB 1059 provides triple damages against employers violating state wage laws.
• Connecticut HB 5113 and SB 454 establish a commission to review the problem of employer misclassification for purposes of avoiding obligations under state and federal labor, employment, and tax laws.
• In Utah, SB 159 makes it fraud to misclassify an employee to avoid the obligation to obtain workers’ compensation insurance coverage, and SB 189 establishes a council to study how to reduce costs resulting from the misclassification of workers.
• Arizona SB 1125 provides more employer penalties and employee compensation when a worker's injury results in permanent disability or death.  The act defines an employee as any person in the service of the employer--including aliens and minors without legal work authorization.
• In 2008, anti-trafficking laws were passed in Maine (LD 461), New Mexico (SB 71), Oklahoma (HB 1021), Utah (HB 339, amending SB 81), Tennessee (HB 71), and Missouri (comprehensive anti-immigrant bill (HB 1549).

A number of similar bills were introduced, but not enacted:

• Virginia proposed a bill, HB 1038, that would make the failure to pay the minimum wage a felony or misdemeanor.
• Iowa proposed SF 2416 to sharply increase fines for employers violating state wage laws, crack down on employee misclassification, and protect workers reporting violations from retaliation.  While the bill was only approved in the state Senate, it played a significant role in derailing anti-immigrant legislation promoted in the legislature.
• Proposed California AB 1278 would void any labor contract provision that deducts from a person's wages the cost of emigrating and taking transportation to the US.

Even as bills were being introduced to tighten penalties for violations of wage laws, state executive branches were also stepping up enforcement under existing wage laws.  One reason for this trend towards wage enforcement is that state governments lose billions of dollars in revenue each year due to the failure to enforce state wage laws.  A California Joint Enforcement Strike Force on the Underground Economy was created over a decade ago; a 2005 state labor department report found that in one year, various agencies investigating labor and pay reporting violations collected over $100 million in citations and assessments.  Other states have joined California in tightening enforcement coordination:

• In New York, a new joint task force of state labor, tax and worker compensation agencies conducted a dramatic sweep this year of 117 employers, finding 2,078 illegally misclassified employees and another 646 workers who were owed minimum wage and overtime pay totaling $3 million. 
• Massachusetts Gov. Deval Patrick created a similar task force via Executive Order 499.
• Illinois, along with a number of other states, has mandated a state study commission to collect data and information on lost tax revenues due to independent contractor abuses.

A few state legislatures enacted bills to promote the use of the error-ridden E-verify identity verification database and otherwise sanction undocumented immigrant workers and, faintly, their employers:

• In 2008, Mississippi passed SB 2988 requiring employers to use E-verify or face felony sanctions (although small employers aren’t required to comply until 2011), Alabama passed resolution SJR 39 to study the use of E-verify, and Colorado passed a bill requiring the DOL to remind employers to use the program (SB 139).
• Arizona HB 2745 prohibits knowingly employing undocumented workers and requires employers to use E-verify.  The bill also criminalizes the use of another person’s identity.
• Virginia HB 1298/SB 517 require government contractors to stipulate in their contract with the state that they won’t hire undocumented workers.
• In West Virginia, HB 4255 authorizes the state Division of Labor to promulgate a legislative rule about the verification of workers' legal employment status.
• E-verify provisions and prohibitions on employing undocumented workers were also included in the comprehensive bills passed in Utah (SB 81), South Carolina (HB 4400), and Missouri (HB 1549).
• For bills focusing specifically on sanctions, see Virginia HB 926/SB 782, which suspends employers’ right to operate for one year if they employ undocumented workers, and Tennessee SB 4069, which allows employers to find out who complained about the immigration status of their workers.
• Purporting to fight “identity theft,” several states proposed bills that would make it a felony to be an undocumented worker.  South Carolina successfully passed SB 483, making it a felony to use another person’s social security number to obtain employment.  Utah SB 52 modified the state’s existing identity theft statute’s definition of a 2^nd degree felony to include taking an identity to obtain employment worth over $5,000.

The validity of bills requiring E-verify was brought into question on June 4^th when a US District Court in Oklahoma found parts of Oklahoma's HB 1804 likely unconstitutional, issuing a preliminary injunction prohibiting enforcement of provisions penalizing employers for failing to verify employee’s immigration status.  It is still unclear how this decision might affect other states that continue to pass bills requiring E-verify and sanctioning employers for employing undocumented workers.  As the court decision plays out, progressives can continue to introduce legislation urging employers and the federal government not to use E-verify (see proposed bill Rhode Island HR 8031).

Immigrant Integration and Naturalization

While anti-immigrant forces raise fears that recent immigrants resist intergration into American society, progressive policymakers have been able to promote policies that show quite the opposite - that if given the chance, most new immigrants are eager to learn English, become citizens and participate as full members of our communities.  Building on the success of "New Americans" policies enacted in states like Illinois in past years, a number of states moved forward this year on similar programs:

• In February 2008, Washington’s Governor Christine Gregoire signed Executive Order 08-01, creating a New Americans Policy Council to promote naturalization, English skills, and public-private partnerships for integration.  The program also includes funding for community economic development.  If related measure SB 6673 receives funding, it will involve explorations of online learning in other languages, and the development of recommendations for English language students.
• Illinois passed extensive New Americans provisions in 2007 (see SB 1446, establishing the “we want to learn English initiative,” and SB 1746, enacting the Latino Family Commission).  In 2008, SB 783 provides funds for more bilingual personnel in public agencies.
• Arizona SB 1096 and Georgia HB 990 and HB 989 appropriate funds for English language learners, and Missouri HB 2010 provides funds for naturalization assistance to certain legal immigrants.  New York's budget bill SB 6803 covers both service areas.
• Maryland's SB 90 provides funds for an Russian Immigrants Program, educational programs on citizenship laws, and a general fund for work on limited English proficiency.  In May 2008, Maryland passed HB 610 to establish a Task Force on the Preservation of Heritage Language Skills.  The Task Force's goal is encourage new Americans to maintain their native language skills while also learning English.  With the Task Force recommendations, Maryland is hoping to foster a population more prepared with the language skills to participate in the global economy and national security efforts.
• Connecticut HB 5321 established an Asian Pacific American Affairs Commission to support the needs of the Asian Pacific American community and develop programs addressing issues such as access to health care, housing, job training, access to the legal system, immigration, workplace justice, and English language instruction.
• In fall of 2007, New Jersey created a Blue Ribbon Panel on Immigrant Policy to develop strategies to better integrate immigrants in that state, and New York announced an initiative to fund nineteen state organizations that help New York immigrants become United States citizens.  Massachusetts Governor Deval Patrick's FY 2009 budget proposed increasing funding for that state's Citizenship for New Americans Program from $500,000 to $1.5 million.

Notably, not a single state repealed in-state college tuition "DREAM Acts" in the 2008 session. In Nebraska, Governor Dave Heineman's bill, LB 963, to take state benefits away from undocumented immigrants and their children was buried by the Legislature's Judiciary committee in late February, while proposals to repeal Utah's DREAM Act also failed, highlighting that even in the more anti-immigrant state environments, legislators recognized that long-term integration of immigrants in the country was still a priority.

A number of states have also passed bills regulating immigrant assistance providers, assuring that these “notorios” are registered, properly advertise their services, and do not engage in fraudulent and unauthorized practice of law.  See Georgia HB 1055, Wisconsin HB 468, South Carolina HB 4400 for examples from 2008.

Studying the Impact of Immigration on State Budgets and Economies

As multiple independent reports have been published highlighting the fact that undocumented and legal immigrants pay more in taxes than they use in benefits, a number of states promoted bills, written by immigration supporters and opponents, to provide for studies of the economic impact of immigrants on the state.  State leaders also began emphasizing the problem that while immigrants pay significant taxes to the federal government, little of those taxes are being returned to the state and local governments to help provide services for those new immigrants, one cause for the tensions over immigration in some communities.

• Maryland passed HB 1602, establishing a 3-year Commission to Study the Impact of Immigrants in Maryland, including a study of the demographic profile and impact of immigrants, and the economic and fiscal impacts of immigration.  The Commission’s recommendations are due by January 2011.
• Utah HB 262, enacted in March, calls for Office of Legislative Research and General Counsel to study all available remedies the state has for seeking reimbursement from the federal government for costs incurred from illegal immigration.
• Oregon's HB 3624 requires an annual report by the Department of Transportation describing the effects and fiscal impact of Oregon's SB 1080 (a 2008 law requiring proof of lawful presence to receive a driver license and ID), including changes in rates of uninsured drivers, unlicensed drivers, and multiple passenger accidents related to the transportation of laborers.
• Mississippi SB 3124 calls for the Department of Public Safety to prepare a report for the legislature on the costs of state enforcement of federal immigration laws.
• Nebraska proposed LR 362, an extensive interim study to identify pragmatic solutions to the issues surrounding the increasing population of undocumented immigrants in the state, and to research current local action, the effects of federal inaction, the naturalization process, and the actions of other states.  The issues studied will include public benefits, law enforcement, employment, health care, identification, licensing, legal services, guest workers, trafficking, and educational opportunities for the children of undocumented parents.

Criminalizing Immigrants vs. Community Policing Approaches

Driver’s license and other ID regulations remain common barriers for immigrants.  Laws passed this session include Idaho’s HB 366, requiring legal immigrants’ licenses to have expiration dates matching their immigration documents, and Oregon SB 1080, establishing that receiving a license requires lawful presence.  Maryland's legislature, however, rejected overtures by the governor to restrict that state's program for licensing undocumented immigrants. 

Georgia's legislature had a particular focus on immigrants and driving: The Georgia legislature increased the punishment for anyone caught driving without a license in SB 350, but also allowed immigrants to keep licenses from their home country in SB 488.  While this bill was purportedly passed with intentions to aid immigrants, advocates are worried about the requirement that those who keep their foreign licenses have this information recorded in the Georgia Crime Information Center.  Successes in 2008 include Georgia Governor Sonny Perdue’s veto of SB 978, a bill that would have authorized law enforcement to impound the vehicles of people found driving without a license.

Local Enforcement of Federal Immigration Law:  The rightwing’s message to be tough on crime by illegal immigrants continues to manifest in the states as more bills are passed authorizing relationships between local law enforcement and federal immigration officials (see Missouri HB 1549, Utah SB 81, and South Carolina HB 4400), requiring jails to check immigration status (see Alabama HR 413 , Georgia SB 350, and Virginia HB 820/SB 609), and allowing immigration status to have weight in bail considerations (Virginia HB 440/SB 623). Virginia's HB 1254 deals specifically with reporting the status of youth offenders.

A More Positive Message of Integrating Immigrants into Community Policing: A number of state leaders have countered the message that illegal immigrants are criminals by stressing the need to develop positive relationships between immigrant communities and the police in order to increase public safety.  A number of cities around the country have enacted policies that protect victims of and witnesses to a crime and a number of states are moving in that direction:

• The Virginia legislature introduced two bills, SB 441 and HB 307, prohibiting law enforcement officers from inquiring into the immigration status of any person who reports being a victim or witness of a crime.
• Rhode Island’s proposed HB 7967 would offer similar protections for immigrant victims and witnesses, but also prohibits local law enforcement from entering into any agreements to enforce federal immigration laws.  SB 2237 would add a requirement that officers maintain confidentiality if an immigrant’s status is known, and requires training and cooperation with community organizations to implement the law.
• California and Hawaii both proposed bills focusing on protecting immigrant victims of domestic violence.  California AJR 42 urges the US Congress not to change the current policy allowing immigrant victims to pursue permanent resident status.  The bill stresses a purpose to prevent victims from staying in violent relationships to avoid deportation.  Hawaii HB 2140 requires the state Department of Human Services to establish a pilot program to assist undocumented immigrant victims.  California Governor Schwarzenegger vetoed a similar bill in 2007, AB 502, that would have established a similar pilot program in LA.  He also vetoed AB 1669, which would have authorized grants to trauma centers helping immigrant victims.
• New York’s proposed SB 6738 would prohibit state officers or employees from disclosing a person’s immigration status.
• Tennessee HB 4001 provides legal remedies for victims of racial profiling and prohibits law enforcement officers from treating individuals differently based on their race, color, ethnicity, or national origin.
• Other states have pursued non-legislative options to promote immigrants participation in community safety.  New Jersey’s Attorney General Anne Milgram issued an August 22, 2007 directive to law enforcement officers, prohibiting officers from inquiring about or investigating the immigration status of any victim, witness, or person requesting assistance from the police.  The directive also prohibits racial profiling.
• In 2007, California's AJR 29 urged the federal government to pass the Local Law Enforcement Hate Crimes Prevention Act (the Matthew Shepard Act).  The resolution found that the under-reporting of hate crimes is the result of a variety of factors that includes the victim's lack of knowledge about the criminal justice system, fear of retaliation, linguistic and cultural barriers, immigration status, and prior negative experience with governmental agencies.
• In 2007, New Hampshire proposed HB 404, which would have prohibited the use of state and local law enforcement agencies for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship who are in violation of federal immigration laws.

Conclusion: Changing the Message in 2009

In the end, the story on immigration in 2008 was one of a few bad bills passed, a lot of bad bills defeated and a number of positive programs moving forward.  Goals for 2009 will be:

• First, to make sure legislators across the country understand that there are a positive alternative policies that encourage immigrant integration and raise wages for all instead of the punitive rightwing program on immigration. 
• Second, Progressive States Network will be working with our legislative and advocate allies to promote multi-state campaigns on wage enforcement, "New Americans" immigrant integration programs, and community policing programs that protect immigrant victims and witnesses to crime from abusive immigration enforcement.
• Lastly, we need to continually emphasize that policies that scapegoat immigrants are ultimately a tactic to distract Americans from challenging the more fundamental economic inequalities that lower wages for all families and weaken our communities. 

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