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ALABAMA IMMIGRATION UPDATE

ALABAMA IMMIGRATION UPDATE. ATTACHMENTS. DEPARTMENT OF REVENUE MEMO: JULY 5, 2012 11 TH CIRCUIT OPINION ACT NO. 2012-491 WITH UNDERLINES, STRIKE THROUGHS CHAMBER OF COMMERCE VS. UNITED STATES ARIZONA VS. UNITED STATES. BUSINESS ENTITY. EMPLOYING ONE OR MORE PERSONS

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ALABAMA IMMIGRATION UPDATE

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  1. ALABAMA IMMIGRATION UPDATE

  2. ATTACHMENTS • DEPARTMENT OF REVENUE MEMO: JULY 5, 2012 • 11TH CIRCUIT OPINION • ACT NO. 2012-491 WITH UNDERLINES, STRIKE THROUGHS • CHAMBER OF COMMERCE VS. UNITED STATES • ARIZONA VS. UNITED STATES

  3. BUSINESS ENTITY • EMPLOYING ONE OR MORE PERSONS • SOLE PROPRIETORS WITH NO EMPLOYEES ARE NOT CONSIDERED A BUSINESS ENTITY.

  4. EMPLOYEE • DOES NOT INCLUDE ANY INMATE IN CITY, COUNTY OR STATE

  5. EMPLOYER • EMPLOYING ANY PERSON FOR HIRE IN ALABAMA

  6. LAWFULLY PRESENT • ADDS VALID UNIFORMED SERVICES PRIVILEGES AND IDENTIFICATION CARD

  7. SUBCONTRACTOR • PERSON, BUSINESS ENTITY, OR EMPLOYER WHO IS AWARDED A PORTION OF AN EXISTING CONTRACT BY A CONTRACTOR, REGARDLESS OF ITS TIER.

  8. SECTION 9 • CONDITION FOR AWARD OF ANY CONTRACT, GRANT OR INCENTIVE • BUSINESS ENTITY EMPLOYS ONE OR MORE • WITHIN THE STATE OF ALABAMA • (DELETED AFFIDAVIT AND LIMITS TO WITHIN STATE OF ALABAMA) • NO AFFIDAVIT, BUT • VERIFY E-VERIFY • SEE DEPT. OF FINANCE FORM: 7/5/12

  9. EVERIFY AND I-9 UPDATE • INTERNAL AUDIT OF I-9’S SHOULD BE COMPLETED • NEW FORM IN AUGUST (DID NOT HAPPEN) • USE OLD FORM UNTIL FURTHER NOTICE • WATCH FOR NEW FORM AND IMPLEMENT

  10. STATE FUNDED ENTITY • ANY ENTITY THAT RECEIVES ANY MONIES FROM THE STATE OR A POLITICAL SUBDIVISION THEREOF; • PROVIDED, HOWEVER: AN ENTITY THAT MERELY PROVIDES A SERVICE OR A PRODUCT TO ANY GOVERNMENTAL ENTITY AND RECEIVES COMPENSATION FOR THE SAME SHALL NOT BE A STATE FUNDED ENTITY.

  11. A CONTRACT? • 31-13-9 (K)(1) A contract shall mean a contract that was competitively bid… • BUT: • (k): All contracts or agreements must contain certain language

  12. CONTRACT EXCLUDED • FINANCE DEPARTMENT MEMO: • IF TRANSACTION ENTERED INTO BY A STATE AGENCY DOES NOT REQUIRE COMPETITIVE BIDDING: PURCHASE ORDERS LESS THAN BID LIMIT) • WHAT ABOUT THE CITY?

  13. HOWEVER • IF WE DO OR SHOULD DO AN RFP OR IF WE COMPETITIVELY BID, WE MIGHT REQUIRE THE MOU AND CERTIFICATION STATEMENT PRIOR TO AWARDING. • SO WHAT IS COMPETITIVE BIDDING?

  14. THE LANGUAGE • “BY SIGNING THIS CONTRACT, THE CONTRACTING PARTIES AFFIRM, FOR THE DURATION OF THE AGREEMENT, THAT THEY WILL NOT VIOLATE FEDERAL IMMIGRATION LAW OR KNOWLINGLY EMPLOY, HIRE FOR EMPLOYMENT, OR CONTINUE TO EMPLOY AN UNAUTHORIZED ALIEN WITHIN THE STATE OF ALABAMA.”

  15. AND MORE • FURTHERMORE A CONTRACTING PARTY FOUND TO BE IN VIOLATION OF THIS PROVISION SHALL BE DEEMED IN BREACH OF THE AGREEMENT AND SHALL BE RESPONSIBLE FOR ALL DAMAGES RESULTING THEREFROM.

  16. EXCLUSION • THIS DOES NOT APPLY TO AGREEMENTS BY THE STATE, ANY POLITICAL SUBDIVISION, OR ANY STATE FUNDED ENTITY RELATING TO DEBT OBLIGATIONS OF SUCH ENTITIES.

  17. IF VIOLATED, THEN • …BREACH OF AGREEMENT AND RESPONSIBLE FOR ALL DAMAGES RESULTING THEREFROM • ACTIONS BROUGHT IN CIRCUIT COURT

  18. PENALTY PROVISIONS • THREE LEVELS • PROBATION TO PERMANENT SUSPENSION

  19. WHAT ABOUT THE MOU? • BEST PRACTICES: • MOU NUMBER WITH BID? • AFFIDAVIT FROM OUT OF STATE COMPANIES THAT THEY HIRE NO EMPLOYEES IN ALABAMA • COMPLETE MOU IF CONTRACT AWARDED (PRIOR TO AWARD) • PUT CITY MOU ON WEBSITE !!

  20. SUBCONTRACTOR • A PERSON, BUSINESS ENTITY OR EMPLOYER IS AWARDED A PORTION OF AN EXISTING CONTRACT BY A CONTRACTOR, REGARDLESS OF ITS TIER. • CONTRACTOR NOT LIABLE UNLESS KNOWS OR SHOULD KNOW SUB WAS IN VIOLATION

  21. CONTRACT VIOLATION • BREACH OF CONTRACT • GOV’T ENTITY MAY TERMINATE • AFTER: NOTICE AND OPPORTUNITY TO BE HEARD

  22. POLICE MATTERS • STOP AND ASK? • THEN WHAT? • DETENTION FOR HOW LONG? • COURT DECISION

  23. CURRENT STATUS • AS OF SEPTEMBER 2012 • SUPREME COURT RULED IN ARIZONA CASE. • THREE SIMILAR SECTIONS IN ALABAMA • SECTION 10: CARRYING REGISTRATION 11th circuit: preempted as is: • SECTION 11 (A) WORKING WHILE UNDOCUMENTED SECTION • SECTION 12: SHOW ME YOUR PAPERS: NOT ENJOINED, BUT RIPE FOR LAWSUIT

  24. The 50/50/90 Rule • Anytime you have a 50-50 chance of getting something right, • There’s a 90% probability of getting it wrong.

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