Computerworld claims Arizona H-1Bs Might Get Jailed, Thanks to SB1070
May 10, 2010, 06:06 AM
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We in Arizona never imagined that immigration bill SB 1070 (titled: Safe neighborhoods; immigration; law enforcement) would get such a high level of media attention. Since the day the bill was signed by the governor, scaremongering and hysteria have dominated the debate. Recently Computerworld published an article that speculates what SB 1070 means for H-1B visa holders: Arizona's new 'papers, please' law may hurt H-1B workers, by Patrick Thibodeau, Computerworld,  April 27, 2010 .

SB 1070 is 17 pages long and not very complicated compared to legislation at the federal level, and yet it seems that most of the mainstream media are woefully ignorant of what the new law will and will not do.

Intense disinformation campaigns by liberal ideologues and the cheap labor lobby are used to obfuscate the issue. Their strategy to defeat SB 1070 is to ostracize and punish Arizona with boycotts. Arizona will be used as an example to other states that may be considering similar bills. Malicious propaganda and character assassination used to scare and intimidate proponents of the bill is best characterized by Nazi Dr. Paul Joseph Goebbels who said, "If you repeat a lie often enough, it becomes the truth."

Patrick Thibodeau at Computerworld is the one of the best writers in the mainstream media on the H-1B issue but he really blew it when he attempted to discuss SB 1070 and what it means for H-1Bs. His article is laden with errors that were compounded by disinformation fed to him by experts that should know better.

Thibodeau's misguided alarmism would lead readers to believe that local police officers in Arizona might be compelled harass H-1Bs because of their skin color. It's an unfounded assertion and an insult to the local police officers in Arizona.

If there was a shred of truth to his article, by now the big name immigration lawyers and lobbyists would be screaming bloody murder over the Arizona law — and yet they remain mostly silent in regards to H-1B. Even the PACs like Immigrationvoice are not making a big deal over it.

The reason these special interest groups aren't shouting about SB 1070 is because most H-1Bs in Arizona won't even notice when the new law goes into effect. My guess is that the majority of H-1Bs support SB1070 because they fear illegal alien criminals as much as we do, and more importantly they don't want illegals to crowd them out when green cards are handed out.

Unless otherwise noted, the indented text that follows are excerpts from the Computerworld article. For the following discussion employment based visas are lumped into one category called "H-1B" because all legal aliens in Arizona will be affected equally by SB 1070.

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.

One of the most common complaints about SB1070 is that foreigners in Arizona will have a new requirement in Arizona to carry immigration documents. The assertion is tautological rhetoric because H-1Bs as well as all other foreign nationals already have to carry documents — and they are required to do so at all times when they are in public — and that applies to every state in the union! Requiring aliens to carry documentation had it's origins in the 1940 Alien Registration Act, was continued in the 1965 INA, and reaffirmed in the 1986 IRCA.

Almost all other sovereign nations require aliens to have identification, and most nations on the planet Earth would think it's very odd that there is a controversy in the U.S. over whether their local police can ask for ID.

Aliens and Nationality  8 U.S.C. § 1304 : US Code - Section 1304(e)

Every alien, eighteen years of age and over, shall at all times, carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Arizona SB 1070 accomplishes nothing more than mandating that local governments follow federal law to be in compliance with 8 U.S.C.
13-1509. Trespassing by illegal aliens; assessment; exception; classification:

IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF TRESPASSING IF THE PERSON IS BOTH: 1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE. 2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).

It's important to point out that many of the critics who are squawking the loudest about local police having authority to enforce immigration laws are from Mexico, a country that requires by law that all police enforce immigration laws. Too often the debate over Arizona's law devolves into arguments about whether it's a good or bad idea for local police to be able to ask for identification. Detractors conveniently forget to mention that this is standard practice all over the world.

Even though it's a federal crime for aliens not to carry proper documents, Section 3 of SB1070 won't impose a penalty for those that fail to have documents; but doing so would be justification for "reasonable suspicion".

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.
"Reasonable suspicion" is a legal term that requires police to come up with much better reasons for stopping people than arbitrary hunches or whimsical profiling. The principle of "reasonable suspicion" is firmly supported in our legal system to protect people from being randomly singled out by bad cops of the Bull Connors genre.
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.
Totally wrong! Although an I-94 would end the issue as far as establishing lawful presence, that document is not required. Typically aliens won't even need documents because in the vast majority of cases the police will merely ask them if they are in the U.S. legally. If the answer is yes, it is up to the officer to determine if further proof is needed — and there is a plethora of documents that can be used for identification purposes. Allow me to describe some of the ways that H-1Bs could prove they were legal.

In Arizona only people who are here legally can get driver's licenses, and of course that includes H-1Bs. By definition everyone with a current driver's license is here legally. In addition, Arizona requires employers to use E-Verify, so they can provide any type of proof of employment that they work in Arizona like a social security card or a company card with a picture. They also could show any document associated with receiving welfare, subsidized health care etc. because Arizona's Proposition 200 doesn't allow illegal aliens to receive public benefits. In addition, Arizona law A.R.S. section 11-1051 Subsection B specifies other documents that will work, such as birth certificates, passports, certain types of utility bills, and even bank statements!

Stephen Yale-Loehr is a well known law professor so it's surprising that he would make a statement that is so obviously false, He totally dismisses the numerous ways a foreign national can prove their lawful presence in the U.S.

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.
Of course any system can break down and people make mistakes, so let's consider a worst case theoretical situation where an Arizona cop sees a few Asian-Indian women wearing Saris. In this scenario the police officer uses their foreign looking apparel as a pretext to see if they are in the U.S. legally. It's not unusual to see women in Saris in the Phoenix metro area — especially in neighborhoods near Intel. What would happen if the police officer asked her and the children for identification and they couldn't provide it?

Most likely the officer would have the police station call their home so that the husband or a family member could bring ID. If the officer couldn't contact somebody at the home he might decide to take them to the police station. During their short stay at the police station the kids would be treated to cookies and milk. Failing attempts to reach somebody at home or at their place of work, and assuming that calls to ICE, DHS, and the DOL didn't work to verify they were legal aliens, the Vienna Convention on Consular Relations (VCCR) requires that local governments provide consular notification for all foreign nationals arrested or detained in the United States. The consulate would verify that they are in the U.S. legally, and then the police would apologize and probably give them a friendly ride back home. Before an actual arrest could occur all of those safeguards would be required to be completed.

H-1Bs in Arizona have far more risk of getting stung by a scorpion or bit by a rattlesnake than ever having to worry about thrown in jail for deportation proceedings.

In the case of Mexico, the consulate isn't notified every time Mexican nationals are detained, so technically the U.S. is violating the Vienna agreement. It's a good agreement because it's reciprocal and has helped many U.S. citizens when they got into trouble in other countries. The U.S. can get away without reporting Mexicans that are detained for minor offenses because the Mexican government is indifferent towards its own people, and given a choice they would rather their citizens stay in the U.S. All other nations insist on being notified and all law enforcement agencies in the U.S. understand the procedure to do so.

Thibodeau said that "legal experts" told him the following:

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.

Foreign nationals are rarely asked for papers and Arizona won't be the exception once SB1070 goes into effect, as Thibodeau seems to imply. If H-1Bs are as smart as the media portrays them to be then they will carry papers at all times because that's what the law requires — and they should do so no matter where they are in the U.S.

How much will change when SB1070 goes into effect? The answer is — not much! Even now Sheriff Joe Arpaio and his deputies have that power under a federal regulation called 287(g) — and Arpaio has jurisdiction over Maricopa County which is the nation's fourth largest county and the most populous one in Arizona. Other counties in Arizona where sheriffs have 287(g) are Pima, Pinal, and Yavapai. For those that aren't familiar with Arizona those combined counties are almost the entire population of Arizona. In addition H-1Bs or other aliens could be asked for papers if they crossed a state border, encountered border patrol or ICE agents, or by TSA or airline ticket clerks if they fly in Arizona. In some rural areas and towns the local police already can do this because they aren't restricted by sanctuary policies.

So, considering all the places an H-1B could be asked for papers, it's almost beyond belief that such a fuss is being made over allowing a few more city police to do the same. To see a list of 287g certified areas go to this ICE page.

Immigration attorney Gregory Wald makes a whopper here:

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?"

The short answer is that a police officer might not understand the complex legalities of immigration paperwork but it doesn't matter. As previously explained, aliens have many alternative documents they can show if they don't have an I-94.

Wald's hypothetical scenario is unlikely but it could happen. As an example, an H-1B could be in the process of getting an extension for an additional three years, or a student with and F-1 visa may be converting to an H-1B, but for whatever reason there was a bureaucratic snafu that caused a delay in computers being updated. In Arizona nonimmigrants and other foreign nationals are issued driver's licenses that expire on the date that the visa expires. If the license is expired it means that the foreigner is either driving without a valid license or is an out of status alien. The bottom line is that anyone caught driving without a proper driver's license is going to be in trouble no matter what their citizenship is. It's the responsibility of the driver to make sure that their license is valid — and that is true for everyone that drives an automobile in the United States!

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.
It's just not possible that an H-1B would be ignorant of the documentation they are required to carry on their person. Loehr is underestimating their intelligence. Shame on him for racial stereotyping!

Unfortunately Thibodeau's article is being quoted all over the place — even Wikipedia, while Loehr's flawed opinions are getting widespread media coverage. It's worth noting that the Wikipedia page on H-1B has many factual errors, and yet they have refused to change them even by their own Wiki volunteers who tried to correct them. Rest assured that this blog will be largely ignored because it debunks the status quo media myths on SB 1070, but that's not necessarily a bad thing. If H-1Bs believe Thibodeau perhaps they will avoid Arizona, which means there will be one less H-1B in Arizona, and one more job for an Arizonan!

Perhaps the most disappointing aspect of Thibodeau's article is that he made no attempt to ask Arizonans who are both expert on H-1B and immigration (like me). Of course had he done that type of research the article would be less inflammatory and far less sensational.

Last but not least, the article concludes with a total falsehood:

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.
As I proved, all states in the U.S. have that requirement. The only thing unique about SB 1070 is that so many people that should know better are spreading so much disinformation.

Note: I contacted Patrick Thibodeau and asked him if he had an explanation for the poor quality of that article and whether he understood how thoroughly he had been snookered by those "experts". He seemed to have no remorse and said I'm welcome to debunk his article if I can. Famous last words!