The Indiana Senate has once again passed a controversial immigration bill and sent it to the House for further consideration. On February 24, 2009, the Senate approved Senate Bill 580 (“SB 580” or the “Bill”) by a vote of 37-13. The Bill is similar to a bill passed by the 2008 Senate which met strong resistance from the business community, business organizations, and immigrant rights advocates, and ultimately failed to make it out of a joint House-Senate conference committee.

The Bill

SB 580, sponsored by Senator Mike Delph (R-Carmel), has been called “one of the toughest illegal immigration bills in the country” by its proponents. The Bill, which would take effect on September 30, 2009, prohibits Indiana employers from knowingly employing illegal immigrants. The new law would place violators on a three-year probation for first time offenses. Second time offenders could receive up to ten years of probation, and third time offenders risk a permanent loss of their Indiana business licenses. During the probationary period, the offending employers are required to file quarterly reports concerning all new hires to the Indiana Attorney General’s office.

In addition to employers, the Bill affects a number of other entities:

Department of Corrections: must evaluate citizenship and immigration status of committed offenders and notify the Department of Homeland Security under certain conditions.

Attorney General: authorized to

• investigate a complaint that an employer knowingly employed an unauthorized alien;
• verify the work authorization of the alleged unauthorized alien with the federal government;
• notify USCIS, local law enforcement agencies, and the prosecuting attorney in the county in which the unauthorized alien is employed; and
• maintain certain records of violation orders.

Prosecuting Attorney: upon receiving notification from the Attorney General, is authorized to bring civil action against an employer for knowingly employing an unauthorized alien.

The Bill establishes a rebuttable presumption that an employer did not knowingly employ an unauthorized alien if the employer complied in good faith with the federal I-9 employment verification requirements. Also, prosecuting attorneys may not file an action against an employer who verified the employment authorization of an employer using the E-Verify program.[Click here for information regarding federal “no-match” letter regulations and click here for more information relating to I-9 Verification.]

Opponents v. Proponents

Those in favor of SB 580 argue that immigration reform is as necessary as ever given the high number of Hoosiers currently unemployed and the federal government’s failure to pass a comprehensive immigration reform bill.

Those opposed, however, argue that the Bill “goes too far.” The Indiana Chamber of Commerce has argued that suspending a business license, especially given the current economic climate, is too severe a penalty. The Mexican Civic Association of Indiana and other, similar organizations have argued that the Bill could lead employers to discriminate against all Hispanics, regardless of whether they are legal workers or not. Lawmakers opposed to the Bill fear that the tightened regulations could threaten family unity if illegal workers are deported, leaving children behind.

Finally, many lawmakers opposed to the Bill believe that immigration is an area where regulation has been and should be left to the federal government, rather than the states. The fear is that a state-by-state approach to immigration will create a patchwork of rules and regulations that is difficult for employees and employers alike to navigate, ultimately hindering business.

Future of the Bill

While the Bill has passed in the Republican-dominated Senate, the Democrat-controlled House might be a different story. House Speaker Pat Bauer (D-South Bend) and other House Democrats, along with a strong Chamber of Commerce and citizen groups, successfully opposed last year’s similar bill. There are few reasons to believe that the fate of SB 580 will be any different than that of 2008’s bill. The House will potentially resume consideration upon returning to session in April.

As always, we will continue to update you on changes in the law affecting employers. If you have any questions about how SB 580 might affect you or on any other business immigration topic, please contact the business immigration attorneys in the Labor and Employment Department at Bingham McHale.

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