ARIZONA STATE SENATE
Forty-eighth Legislature, Second Regular Session
FACT SHEET FOR S.B. 1508
provisions; Arizona temporary worker program
Purpose
Establishes the Arizona Temporary Worker Program (Program) to provide foreign workers to Arizona employers that are experiencing a labor shortage. Conditions the enactment of the Program on federal authorization.
Background
The Federal Immigration and Nationality Act allows an agricultural employer that anticipates a shortage of domestic workers to hire nonimmigrant foreign workers to perform agricultural labor or services of a temporary or seasonal nature under H-2A visas. There is no annual limitation on the number of temporary foreign H-2A workers that may be admitted into the U.S. Similarly, the H-2B nonimmigrant visa program permits employers to hire nonimmigrant foreign workers to come temporarily to the U.S. to perform nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis. A job opportunity must be full-time and the petitioner’s need must be one year or less. There is a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each federal fiscal year.
An employer that seeks to hire workers under either the H-2A visa or the H-2B visa must apply to the U.S. Department of Labor for certification that: 1) there are not sufficient workers who are able, willing, qualified and available to perform the work and 2) the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Federal immigration law preempts any state or local law regulating admissibility of nonimmigrant workers (8 U.S.C. 1188). S.B. 1508 establishes the Program to allow Arizona workers that are experiencing a labor shortage to hire foreign workers. The accompanying memorial, S.C.M. 1011, requests the federal government to authorize Arizona to implement the Program.
The U.S. Department of Homeland Security’s (U.S. DHS) United States Citizenship and Immigration Services Bureau, together with the Social Security Administration (SSA), administers the E-Verify Program, which allows employers to confirm the employment eligibility of all newly hired employees. The system uses Social Security numbers, alien registration numbers and I-94 numbers to perform the verification checks. To participate in E-Verify, an employer must register, complete a Memorandum of Understanding and a web-based tutorial, and have access to the Internet. Although the use of E-Verify is optional under federal law, A.R.S. § 23-214 requires employers to verify the employment eligibility of all new hires through E-Verify. S.B. 1508 requires employers that seek to participate in the Program to register with and participate in E-Verify.
The Industrial Commission of Arizona (Commission) maintains regulatory authority over labor-related issues, including the processing of workers’ compensation claims, state wage and labor laws and occupational safety and health. S.B. 1508 requires the Commission to administer the Program by processing employer applications, approving employers for participation and issuing temporary worker identification cards.
Approved employers may recruit foreign workers at a U.S. Consulate in the Republic of Mexico (Mexico). There are U.S. Consulates located in the following nine cities in Mexico: Ciudad Juarez; Guadalajara; Hermosillo; Matamoros; Merida; Monterrey; Nogales; Nuevo Laredo; and Tijuana.
The fiscal impact associated with this legislation, if any, is undetermined. S.B. 1508 requires the Commission to administer the Program with assistance from the Arizona Department of Public Safety (DPS) and the Arizona Department of Transportation (ADOT); the Commission may charge fees to cover administrative costs of all three agencies. S.B. 1508 classifies the making of a false statement on the required affidavit as a class 6 felony; an increase in penalties could increase the number of incarcerations.
Provisions
Definitions
1. Defines “Commission” as the Industrial Commission of Arizona.
2. Defines “Director” as the Director of the Commission.
3. Defines “employer” as an employer in a business industry in Arizona that is experiencing a labor shortage, including agriculture and dairy industries.
4. Defines “E-Verify Program” as the employment verification pilot program as jointly administered by U.S. DHS and the SSA or any of it successor programs.
5. Defines “foreign worker” as a worker who is eligible under the Program to provide labor to an eligible business industry in Arizona.
Participation in the Program
6. Establishes the Program to provide foreign workers to Arizona employers that are experiencing a labor shortage.
7. Requires an employer that desires to participate in the Program to file an application with the Commission and to be registered with and participating in E-Verify. The Director may require the employer to pay an application fee.
8. Requires an employer’s application to be on a form prescribed by the Commission and to include:
a) the name, address and federal income tax identification number of the employer.
b) the employer’s business industry.
c) a description of the labor shortage and an explanation of the employer’s efforts to find local workers with the necessary skills.
d) a signed sworn affidavit that indicates that the employer cannot find authorized workers in the U.S.
e) any additional information that the Commission requires.
9. Classifies a false statement made on the required signed sworn affidavit as a violation of false swearing, which is a class 6 felony.
10. Requires the Commission to review and make a determination with respect to an employer’s application within 30 days.
11. Permits an employer that is approved by the Commission to recruit foreign workers at a U.S. consulate in Mexico to provide labor for the employer.
12. Requires an approved employer that recruits a foreign worker to obtain from the foreign worker an application that includes the foreign worker’s name, photograph, fingerprints and any other necessary background information that the Commission requires. The application must be completed at the U.S. Consulate and submitted to the Commission.
13. Requires the Commission to coordinate with the DPS to conduct a state and federal criminal records check on a potential foreign worker. The Commission may charge the approved employer a fee for each criminal records check.
14. Requires the employer to obtain a criminal records check of the foreign worker from an appropriate law enforcement agency in Mexico and to submit the results to the Commission.
15. Prohibits the following foreign workers from participating in the Program:
a) those who have been convicted of a crime in the U.S.
b) those who have been convicted of a crime in Mexico that would have been a class 1 misdemeanor or a felony in Arizona.
Temporary Worker Legal Identification Cards
16. Requires the ADOT to prepare temporary worker legal identification cards (ID card) that are nonforgeable and meet the requirements prescribed by federal law and to provide the cards to the Commission. The cards must clearly indicate the date on which the worker’s authorized presence in Arizona expires.
17. Requires the Director to require the employer to pay a fee for the administrative costs incurred by ADOT to prepare the ID cards.
18. Requires the Commission, if it approves a foreign worker to participate in the Program, to issue an ID card for the approved foreign worker and to notify DPS.
19. Requires the ID card to be issued to the approved employer that recruited the foreign worker. The employer is responsible for delivering the ID card to the approved foreign worker at the U.S. consulate in Mexico.
20. Requires an employer to surrender an ID card to the Commission if the Commission determines that the employer knowingly failed to deliver the ID card to the appropriate approved foreign worker.
21. Makes an employer that fails to surrender an ID card as required ineligible to continue participating in the Program.
22. Permits an approved foreign worker who has received an ID card to enter the U.S. and return to Mexico through a port of entry on the Arizona border as prescribed by federal law.
23. Stipulates that an ID card issued to a temporary worker is valid for two years, unless revoked. The card may be renewed on application of the approved employer and approval by the Commission. The Director may require an employer to pay a renewal fee.
Revocation of ID Cards
24. Requires the Commission to revoke the ID card of any approved foreign worker who:
a) is reported absent from work without approval by an approved employer for 14 consecutive days.
b) is unable to be located by an approved employer.
c) is determined to have traveled outside of Arizona.
d) is convicted of a crime in Arizona.
e) is no longer employed by an approved employer.
f) gives, sells or lends the foreign worker’s ID card to any other person for the purposes of obtaining employment.
25. Requires, if an employer terminates an approved foreign worker, the employer to notify the Commission within three business days and the Commission to revoke the foreign worker’s ID card.
26. Requires a foreign worker, if the Commission revokes the foreign worker’s ID card, to leave Arizona within three business days, except that the Commission may provide up to 14 more days for the foreign worker to leave Arizona if the foreign worker requests it.
27. Requires an employer to provide reasonable transportation to the port of entry nearest the U.S. consulate in Mexico where the worker made the original application for approval if the foreign worker’s ID card is revoked and the worker requests transportation.
28. Requires the Commission, if it revokes an ID card, to notify DPS and U.S. Immigration and Customs Enforcement that the foreign worker is no longer authorized to be in the U.S. The notice must include the last known address of the foreign worker.
29. Requires DPS, on notification that a foreign worker is no longer authorized, to revoke the approved status of the foreign worker in DPS’s database.
Complaints
30. Permits any U.S. citizen to file a complaint with the Commission if a local worker is terminated or not hired as a result of the employer’s participation in the Program.
31. Requires the Commission to evaluate all complaints.
32. Requires the Commission to reexamine an employer’s application to participate in the Program if sufficient complaints are received against the employer.
33. Permits the Commission to revoke an employer’s authorization to participate in the Program if the Commission determines that the employer did not take sufficient measures to obtain local workers.
Miscellaneous
34. Requires DPS to maintain a database of approved foreign workers.
35. Prohibits an approved foreign worker from:
a) transporting a family member into Arizona from outside of the U.S. unless the family member has obtained authorization from the federal government to enter or remain in the U.S. lawfully.
b) filing for unemployment benefits.
c) working in any other state.
d) traveling outside of Arizona.
36. Requires any renewal fees or fees for criminal records checks that the Commission collects to be used proportionately for the administrative costs incurred by the Commission and DPS for the purposes of the Program.
37. Requires an approved employer that offers vacation time to an approved foreign worker to obtain the address where the foreign worker can be located during vacation. If an approved employer does not maintain these records, the employer is ineligible to participate in the Program.
38. Requires an approved employer to comply with all state and federal labor laws.
39. Requires the Commission to adopt rules necessary to administer the Program and exempts the Commission from the Administrative Procedures Act for this purpose.
40. Terminates the Program ten years after the effective date.
41. Conditions the enactment of this legislation on the federal government’s authorization to implement the Program or other similar program. The Attorney General must notify in writing the Director of the Legislative Council of the date on which this occurs.
42. Becomes effective on the general effective date or later, subject to the provisions of the conditional enactment.
Prepared by Senate Research
April 7, 2008
LB/jas