Mark A Ivener, A Law Corporation

Around the States: Illinois, Arizona, REAL ID/WHTI Update

In the void created by Congress’s lack of action on comprehensive immigration reform, states are not sitting idly by. The following is an update on key developments around the nation.

Illinois. In September, the Department of Homeland Security (DHS) filed a lawsuit in federal court to declare invalid an Illinois statute, the “Right to Privacy in the Workplace Act,” that effectively forbids Illinois employers from enrolling in the DHS’s E-Verify (employment authorization verification) system. According to the DHS, the statute was to become effective on January 1, 2008. In papers filed with the court on December 13, 2007, however, the state agreed not to enforce the new law until the DHS’s lawsuit against the state is resolved. It also disclosed that the Illinois legislature is considering a bill to address the legal issues raised in the suit.

The DHS said it will communicate with each of the Illinois employers enrolled in E-Verify to let them know that they may continue using E-Verify without fear of a state enforcement action on January 1. The state’s decision also allows employers planning to enroll in E-Verify to do so without the threat of state enforcement against them.

In a motion filed with the DHS, the state requested a 60-day stay of the lawsuit so that the Illinois legislature would have an opportunity to consider proposed changes in the Illinois statute. Secretary of Homeland Security Michael Chertoff said, “I remain hopeful that Illinois will amend its law so that Illinois employers can continue to utilize this valuable tool without the need for further litigation.”

The DHS’s statement is at

Arizona. The Washington Post termed Arizona the “new ground zero” in the debate over undocumented immigration. Arizona passed a law, effective January 1, 2008, that prescribes sanctions for companies that knowingly hire undocumented workers. On a second offense, the company’s business license would be revoked, which Arizona Governor Janet Napolitano has called a corporate “death penalty.” In an editorial published on December 26, 2007, the Post said the Arizona law may become “a test case for how much pain a state is willing to endure, and inflict, in the name of ridding itself of a population that contributes enormously to its economic growth and prosperity.” The Post noted that an estimated 9 to 12 percent of Arizona’s 3 million workers are undocumented. The law is being challenged by business associations and others in court.

According to “Immigrants in Arizona: Fiscal and Economic Impacts,” a study by Judith Gans of the University of Arizona, the total state tax revenue attributable to immigrant workers in 2004 was an estimated $2.4 billion (about $860 million for naturalized citizens plus about $1.5 billion for noncitizens). Balanced against estimated fiscal costs of $1.4 billion (for education, health care, and law enforcement), the net 2004 fiscal impact of immigrants in Arizona was positive by about $940 million. The 2004 total economic output attributable to immigrant workers was about $44 billion ($15 billion for naturalized citizens and $29 billion for noncitizens). This output included $20 billion in labor and other income and resulted in approximately 400,000 full-time-equivalent jobs. The study did not distinguish between authorized and unauthorized workers. The study, which includes demographics and other details about immigrant workers in various industries in Arizona, is available here (PDF).

WHTI/REAL ID update. On December 6, 2007, the DHS and Arizona signed a Memorandum of Agreement (MOA) to enhance the security of state driver’s licenses, to offer a Western Hemisphere Travel Initiative (WHTI)-compliant document to U.S. citizen residents and to pledge future compliance with the requirements of the REAL ID Act.

The Arizona agreement is much like those established with the states of Washington, Vermont, and New York earlier this year, the DHS said. The state of Arizona will develop a technologically enhanced driver’s license that will securely validate the identity and U.S. citizenship of Arizona residents who voluntarily apply and qualify. The enhanced driver’s license, which is proposed to be accepted for border-crossing purposes under WHTI, is expected to be slightly more expensive than a standard Arizona driver’s license and will require proof of citizenship, identity, and residence. The enhanced document also will be aligned to comply with REAL ID over time. The DHS, in turn, will provide the technology and data-sharing specifications to facilitate the use and verification of the enhanced driver’s license at a port of entry.

In addition, Arizona has pledged to become compliant with REAL ID as soon as practicable, the DHS said. The agency plans to issue soon the REAL ID final rule, which is intended to strengthen identification through both physical security features and a secure issuance process. Arizona’s REAL ID-compliant license will be available to U.S. citizen residents who do not wish to obtain an enhanced driver’s license.

REAL ID establishes minimum standards for state-issued driver’s licenses and identification cards in compliance with the REAL ID Act of 2005. The requirements include security features that must be incorporated into each card; verification of information provided by applicants to establish their identity and lawful status in the United States; and physical security standards for locations where licenses and identification cards are issued. A REAL ID driver’s license will be required to access a federal facility, board federally-regulated commercial aircraft, and enter nuclear power plants.

The DHS and the Department of State expect the date of full WHTI implementation to be in the summer of 2008. At that time U.S. citizens traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by land or sea will be required to present a valid U.S. passport or other acceptable document. The precise implementation date will be formally announced with at least 60 days’ notice, the DHS said in a statement.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.