H-1B workers in Arizona that can't immediately prove they're working in the U.S. legally may find themselves detained by police or even jailed under the state's new immigration law.
Legal experts said that an H-1B worker questioned by a police officer that has "reasonable suspicion" about his or her immigration status could be arrested while doing nothing more than going to a restaurant, grocery shopping or even taking a walk around the block if they don't have their H-1B papers at the ready.
Federal immigration law requires that all non-U.S. citizens, including H-1B workers, have documentation showing that they are in this country legally, but visa workers are rarely asked to produce their papers at any time or place, said legal experts.
Many visa holders aren't likely to carry valuable and hard-to-replace paperwork on them at all times for practical reasons -- they could be lost or stolen. Under the new Arizona law, though, every police officer becomes, in effect, an immigration enforcement agent that can demand the paperwork at any time.
The Arizona legislation, signed into law by Gov. Jan Brewer on Friday, has since prompted some sharp reaction.
For instance, San Francisco City Atty. Dennis Herrera yesterday asked city policymakers "to adopt and implement a sweeping boycott of the State of Arizona and Arizona-based businesses."
The main documents that foreign workers would need to show if asked include their I-94 card, which shows their lawful status, and most likely their passport.
Immigration experts noted that there are a number of ways that an H-1B worker can be in this country legally, but not have the paperwork to prove it.
For example, a worker could be carrying an expired I-94 card while waiting for new paperwork from U.S. immigration authorities, a process that could take months. Under current laws that worker could be in the U.S. legally even though the paperwork doesn't reflect it, said Gregory A. Wald, an attorney at Squire, Sanders & Dempsey LLP. "Is a police officer in Arizona going to understand that?"
Meanwhile, the Arizona law may discourage foreign national students from attending college in the state as well as discourage businesses from expanding or locating in Arizona, said Marko Maglich, an attorney at White & Case LLP. "H-1B workers and their employers will surely be among those who find it easier to go somewhere else where people don't risk detention for forgetting their passports when they make a 7-11 run," Maglich said.
Stephen Yale-Loehr, a Cornell University Law School professor and immigration expert, said that the paperwork legal aliens must carry under the Arizona law is not something that most people carry because they fear they will lose it. "They are very valuable (documents) and they usually don't want to take them with you to the gym or the grocery store," he said.
Employers will, at the very least, "be putting out memos to all of their H-1B workers telling them to make sure they carry around their H-1B documents at all times, said Yale-Loehr. In the long run, and depending on how the law is enforced, "it could slow down the willingness of companies to invest in Arizona if they hire a lot of non-citizens," he said.
The Arizona law will be challenged in court and may even push ahead efforts in Congress to adopt comprehensive immigration reform.
Some experts agree that what Arizona's governor has signed into law is unique. "No state until Arizona has made it a crime to not have that paperwork on your person," Sarah Hawk, who heads the immigration practice at Fisher & Phillips LLP.
Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed . His e-mail address is firstname.lastname@example.org.