The ballyhooed Arizona employer sanctions law that went into effect on Jan. 1 has been largely unused, a new University of Arizona study found.
Ten of Arizona's 15 counties have received one or no formal complaints and no cases have resulted in Superior Court action, according to a study by Judith Gans, immigration-policy program manager at the University of Arizona's Udall Center for Studies in Public Policy.
The study found that employers have also been slow to sign up for the required E-Verify, an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows an employer to verify a person's employment eligibility.
The 27,617 firms signed up for E-Verify is up from nearly 19,000 in July 2007, but still represents only 5.6 percent of the estimated number of total firms in the state, Gans found. Gans estimated the number of state firms using U.S. census data from each Arizona county in 2002 and increasing it by the annual rate of growth of GDP for Arizona from 2002 to 2007.
"It's been a little anti-climactic," Gans said. "But, it took effect during the most severe economic downturn since World War II."
"I kind of predicted that actually when I signed it," said outgoing Gov. Janet Napolitano. "There was a lot of drama about it that may not have come to fruition in part because it has a fairly high intent requirement with it."
Like the federal employer sanctions law, for a company to be found guilty, it must be proved that it "knowingly" hired illegal workers.
But Gans and Napolitano both said that the lack of legal action doesn't necessarily mean the law has been a bust.
"Its benefit has been more on the deterrent side than the actual case side," said Napolitano, who has been chosen as the next secretary of the Department of Homeland Security. "There was so much attention paid to the enactment of the law that a number of employers started re-energizing their document checking system using E-Verify or what have you to make sure they would be in compliance."
Gans said, "It has had a chilling effect," citing anecdotal reports of illegal immigrants; leaving the state in fear of the law. "It makes people worried about … facing legal action."
The study, titled "Arizona's Economy and the Legal Arizona Workers Act," is part of the Economics and Public Policy Project sponsored by the Communications Institute and the Thomas R. Brown Foundation. Those two organizations, along with the Arizona Daily Star and several other state organizations, including the University of Arizona, are hosting a forum today in Phoenix on immigration and the economy.
Gans stressed that the study is meant to provide preliminary analysis of the law's impact and that it's much too soon to reach definitive conclusions.
While a number of indicators suggest the number of illegal immigrants living in the state has decreased, it would be premature to tie this to the employer sanction law, she said. Her intuition is that the economic downturn has played a larger role than the law, she said.
"It may very well be that the law is having its intended effect of reducing the number of illegal immigrants in the state, but at this point, we can't really draw conclusions," Gans said.
Pima rejected 4 complaints
There were no complaints filed in Southern Arizona's four border counties.
Pima County received four complaints that were rejected because they related to employees hired before Jan. 1, 2008. The law applies only to workers hired after Dec. 31, 2007. A fifth case is under investigation.
Santa Cruz County received a complaint made by phone, but it was never followed with a formal written complaint, a requirement in that county and many others. Yuma County received one complaint, but the alleged illegal worker turned out to be a naturalized citizen. Cochise County hasn't received any complaints.
Pinal County received two phone call complaints, one of which is being investigated.
Mohave and Yavapai counties, in northwest Arizona, have received the most complaints with 15 and 13, respectively. Of the 15 lodged in Mohave County, eight were discarded because the employees were hired before Jan. 1 and the other seven are being investigated. One or two may be viable, Gans was told.
Of the 13 complaints in Yavapai County, nine were closed without further action, and four are still being investigated.
The Maricopa County Attorney's Office said at least five businesses are being investigated under the law but said the Maricopa County Sheriff's Office would have to give out the number of complaints received. That office did not return phone calls to Gans or to the Arizona Daily Star.
"It certainly hasn't flooded the court system as some predicted," Napolitano said.
The state allocated $2.43 million to county attorneys to enforce the law, including $500,000 to Pima County.
The lack of action on the complaints might be attributed to the structure of the law, which forces county attorneys into a reactive mode, Gans said. After determining whether a complaint is frivolous, a county attorney must prove two key facts: that the employer knowingly hired the worker and that the worker is an illegal immigrant.
But the law does not give county attorneys power to subpoena business records to determine whether the employer knew that person was an illegal immigrant. That means the county attorney must rely solely on evidence provided by the person filing the complaint and any other corroborating evidence that can be obtained without company records, Gans wrote.
"A number of county attorneys mentioned this as an important constraint in the new law," Gans wrote in the study.
That constraint, along with the politically heated climate that surrounds immigration, leads Gans to think that some cases could still end up in Superior Court.
"Maybe people are being very careful to get their ducks in order before they take any action," Gans said.
The finding that less than 6 percent of state employers have signed up for E-Verify is surprising but might be more of a reflection of the economic downturn than a blatant disregard for the new law, Gans said.
Many companies may have chosen not to sign up for E-Verify because they weren't hiring new employees, she said.
Gans said she'll continue to study the issue as time passes and more definitive conclusions can be reached.
"I don't think we will ever be able to quantify exactly what its impact has been on the number of illegal immigrants in the state, but I think it's part of a number of things that have occurred that have overall reduced the number of illegal immigrants living in Arizona," Napolitano said.
Legal Arizona Workers Act
• Went into effect on Jan. 1, 2008.
• Employers are required to use the free E-Verify system, formerly known as Basic Pilot Program, to check the status of new hires. The Internet-based system, operated by the Department of Homeland Security in partnership with the Social Security Administration, allows an employer to verify a person's employment eligibility.
• Businesses face civil sanctions, including probation and suspended business licenses, for "intentionally" or "knowingly" hiring someone not legally authorized to work in the United States.
• A first offense could cost a business its license for up to 10 days. If caught a second time while on a three-year probation, a business will permanently lose its license.
• The local County Attorney's Office investigates written complaints that are notarized and submitted in person. In Pima County, a person lodging a complaint will be required to schedule an appointment with a detective to provide information for the initiation of an investigation.
• If the complaint has merit, county attorneys are required to contact local police and U.S. Immigration and Customs Enforcement about the suspected violators. But while federal authorities can pursue their own actions against the worker or company, the county attorney is still required to take the case to Superior Court to determine the licensing matter for the employer.
• The law prohibits state, county or local officials from reaching a conclusion on immigration status of a worker without conferring with the federal government. Superior Court judges will consider only whether an employer knowingly hired a worker without authorization.
Source: Pima County Attorney's Office, staff research