State Immigrant Policy and Federal Immigration Law
NASHP Annual Conference October 7, 2008 Ann Morse Program Director, Immigrant Policy Project National Conference of State Legislatures
State Role/Immigrant Policy
Federal jurisdiction over immigration policy. States implement programs required by federal law, provide services mandated by the courts, and initiate programs and policies to help integrate newcomers: K-12 education & language acquisition social services health care law enforcement/SCAAP
• • • •
Immigration - A 50 State Issue
• Debates in all 50 state capitols • Originally an issue for only the “7 big immigration states”: California, Texas, Florida, New York, Illinois, New Jersey and Arizona • Immigration is complex. State policy responses vary, because states have different:
– Experiences and histories – Immigrant populations – Resources
Demographics of US immigrants
• 38 million foreign-born 2005
1/3 naturalized citizens 1/3 legal permanent residents 1/3 unauthorized Source: Passel, Pew Hispanic Center
Immigrants by State
• In 1990, 6 states had 75% of population: CA, TX, NY, FL, IL, NJ • 1990-2000, 145% growth in 22 “new growth” states v. 57% nationwide • Increases in SE, Mtn states and Midwest • NC 274%, GA 233%, NV 202%, UT 171% Source: Fix & Capps, The Urban Institute
Immigration Status of Families
• 7.1 million unauthorized families
– 4.4m with no children (62%) – 1.6m with only US citizen children (22%) – 645,000 w/ only non-citizen children (9%) – 490,000 “mixed” with both US and noncitizen children (7%)
Source: Passel, Pew Hispanic Center
Low income immigrants less insured
• 64% of noncitizen adults lack insurance compared to 35% of natives • 49% of noncitizen children lack insurance v. 25% citizen children with noncitizen parents and 15% of citizen children with native parents
Methodology
• Inclusive and comprehensive, capturing all state legislation mentioning immigrants, immigration, migrants, refugees, aliens, etc. as well as those that affect immigrants (e.g., SCHIP for all kids) • 12 topical categories from education to voting • Bills address both legal and unauthorized
Trends in State Legislation
Year 2008*
(6 months)
Bills intro. Enacted 1267 1562 570 300 190 240 84 38
Vetoed 3 12 6 6
2007 2006 2005
State Legislation in 2008 - I
Main Topics Education Employment Health Human Trafficking Number of Laws Enacted 12 18 7 4 States 8 12 6 4
State Legislation in 2008 - II
Main Topics Number of Laws States
ID/Driver’s Licenses/Other Law Enforcement
Legal Services Miscellaneous Omnibus
30 10 2 28 2
15 8 2 17 2
State Legislation in 2008 - III
Main Topics
Public Benefits Voting Resolutions
Number of Laws
States
4 1 57
4 1 19
TOTAL
175
39
Enforcement + Integration
State approaches varied and nuanced: • Law enforcement – public safety, costs, community policing goals • Worksite enforcement – E-verify mandates/options/bars • REAL ID –costs, preemption, protection of data
Enforcement & Integration cont’d
• Colorado pilot program to expedite H-2A visas • Arizona expanded definition of human trafficking to include property (“drop houses”)
Immigrant Health
• Iowa SCHIP option pregnant women and children (SF 2425, 2008) • Illinois All Kids offers health insurance to every uninsured child (HB806, 2007) • Washington covers kids up to 250% poverty, regardless of immigration status (HB5093, 2007) • Minnesota – human services commissioner to provide information to newly arrived immigrants (HF 1078, 2007) • Georgia and Colorado added verification of immigration status but exempted children under 18 (2006)
Employment
• Employer sanctions for hiring unauthorized workers
– E-Verify required by public agencies, private employers and/or state contractors.
• unemployment compensation • wage withholding for non-resident aliens (eg GA, CO, OK, SC)
Law Enforcement
• MOA with DHS - state cooperation in enforcing federal immigration laws. • Penalize the transportation or harboring of unauthorized aliens. • Require law enforcement personnel to check immigration status with ICE of arrested or jailed noncitizens. • 2008: MS requires cost study of MOA by 12/31/08
ID / Driver’s Licenses/ Other Licenses
• 30 laws enacted as of June 30, 2008: most add documentation or eligibility requirements for driver’s licenses or address REAL ID (13 laws) • professional licenses (11 laws) and • firearm/hunting/fishing licenses (6 laws).
Verification for State/Local Benefits – Omnibus Laws
Requires agencies to verify the lawful presence of an individual over age 18 (14 for OK); includes exemptions e.g. emergency medical, disaster relief, humanitarian assistance 2006: GA SB529 effective July 2007, CO HB1023 - Aug 2006, 2007: OK HB1804 - Nov 2007 2008: UT SB 81 – July 1, 2009 SC HB4400 – June 2008 MO HB 1549 - Aug. 28 2008
Federal Role in Immigration
• U.S. Constitution, Article 1, section 8, clause 4: “uniform rule of naturalization” gives Congress power over immigration policy • Equal protection: 14th Amendment, prohibits discrimination on basis of national origin • Due process – 5th & 14th amendments, provides individuals a right to notice & hearing
Federal Preemption
In 1986, the Immigration Reform and Control Act (IRCA) prohibited the employment of unauthorized workers: “the provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”
Legal Challenges
• Arizona's law (HB2779) mandating the use of E-Verify was challenged by employers but upheld by the 9th circuit on Sept 18 • Oklahoma's omnibus law (HB1804) is being challenged by the U.S. Chamber of Commerce • The Illinois law (H1744) prohibiting the use of E-Verify is being challenged by DHS
What’s Next?
• Demographics: 12% of the US is foreign born; 1 in 5 children lives in immigrant family; 2/3 of immigrants are legal • Workforce: the retirement of baby boomers – demand for replacement workers and increases in health professionals
What’s Next? - II
• Federal stalemate except: SSI extension for refugees passed 9/08 • Continued state activity – what neighboring states have done, compliance with federal laws/regs, revisions to previously enacted state laws (lawsuits, implementation challenges)
NCSL Policy
• Border security & enforcement • Temporary worker program • Earned legalization • State impact assistance
Contact: Immigrant Policy Project
National Conference of State Legislatures 444 N Capitol, NW #515 Washington, DC 20001 www.ncsl.org/programs/immig