Anthony Price, age 55, was born in Mexico and has lived in the United States almost all his life.  Although Anthony was born outside the U.S., he always believed he was a U.S. citizen because he had lived in the U.S. since his very early childhood.  His parents, spouse and all the other members of his family always assumed that he was a U.S. citizen.  In fact, Anthony registered for the draft when he was of age as all his friends did at the same time.  Later, he took part and voted in local and national elections like any U.S. citizen has the privilege to do.  Anthony and all his friends and family members knew that Anthony was a U.S. citizen.  Anthony never imagined that his U.S. citizenship would one day be challenged by an agency of the U.S government and that he actually would have to provide evidence that he really was a U.S. citizen.

Anthony’s wife was planning a trip to Europe for their wedding anniversary.  Although he made regular trips to and from Mexico in the past, without difficulty, he had never needed a passport for these trips.  That was before the law changed.  Now, any U.S. citizen leaving the country needed to have a U.S. passport.  So he submitted an application to the U.S. Passport Agency.  The Agency’s response was startling to Anthony—it claimed that he did not provide proper evidence to show that he was a U.S. citizen.  The agency provided Anthony with a list of documents that were acceptable evidence of U.S. citizenship.  Anthony did not have any of the listed documents in his possession.  Anthony wondered how he could prove his citizenship without a U.S. birth certificate.  Unsure about how to approach the situation, he contacted an experienced immigration attorney for legal advice.

To his shock, Anthony discovered that much more was at stake here than just getting a passport or a visit to Europe.  Under U.S. immigration law, a person who falsely claimed to be a U.S. citizen – even if he honestly believed himself to be a U.S. citizen – has committed a very serious offense.  Not only could he be deported – but (with one very narrow exception) there is no waiver or other relief for such a transgression.  The penalty is to be permanently barred from entering the United States!

Fortunately, Anthony’s attorney was experienced and knowledgeable.  The attorney explained to him that, under specific circumstances, U.S. citizenship could be obtained through one’s parents or ancestors’ citizenship and residential status in the United States.  To find out whether this applied to Anthony, the attorneys helped Anthony gather relevant information and documentary evidence (including pictures, genealogy documents, ancestors’ correspondence, school diplomas, etc.) relating to his family.  They had to gather information starting with Anthony’s grandparents in order to obtain the necessary evidence that proved that Anthony was actually a U.S citizen at the time of his birth.

Anthony’s parents were also both born in Mexico and did not have U.S. birth certificates to prove that they were U.S. citizen at birth.  They were both deceased at the time Anthony was applying for his U.S. passport and neither of them had ever applied for a U.S. passport or any other proof of U.S. citizenship (i.e. a certificate of citizenship for example) while they were alive because they never needed any.

Although he was born in Mexico, Anthony’s father lived in the United States for most of his life and for some time before Anthony’s birth.  The attorney learned through family tree records that the father’s parents (Anthony’s paternal grandparents) were both born in the U.S. and resided here before his father was born, which by law made his father a U.S. citizen at birth.

Anthony’s mother was also born in Mexico to a U.S.-born mother (Anthony’s maternal grandmother), but her father was born in England.  However, because of the laws in effect at the time of Anthony’s mother’s birth, her birth from one U.S. citizen parent was enough for her to be a U.S. citizen at the time she was born.

Thus, both of Anthony’s parents were U.S. citizens at the time of his birth. More importantly, because they had resided in the U.S. for a sufficient amount of time before he was born, they legally transmited their U.S. citizenship to Anthony – even though he was born outside the U.S.

Anthony’s immigration attorney sent a very detailed and well-documented letter to the U.S. Passport Agency showing that Anthony was, in fact, a U.S. citizen based on his ancestry.  The letter included a carefully written explanation, showing how each item of documentary evidence supported Anthony’s claim to U.S. citizenship, and citing the old laws and statutes that were in effect when each of his parents and grandparents were born.  As a result, the Agency granted Anthony’s request just in time for him to travel abroad to enjoy his well-deserved vacation.

Does Anthony’s story sound like fun?  It is not!  But if many current U.S. legislators have their way, we could all end up being required to document our ancestry, in order to claim our U.S. citizenship!A small but very vocal minority of anti-immigrant activists seek to overturn our long-established and Constitutionally-based law of citizenship through birth on U.S. soil.  Citing emotionally weighty but logically light arguments about “anchor babies,” they would have us abandon a system which is simple, efficient and effective in favor of one that would not only be cumbersome and expensive to administer, but would also lead to a growing population of “stateless” persons, unable to claim a home in any country.

Fortunately, efforts to rescind or drastically undercut the 14^th Amendment to the United States Constitution have abated, for now.  But it is doubtful that the proponents have actually gone away.  More likely they are merely licking their wounds while planning a new assault.  Who knows, they may eventually succeed.

If that happens, your U.S. birth certificate may become only “circumstantial” evidence towards your claim to be a true American – despite the fact you were “born in the USA!”

The Arizona immigration attorneys at Gunderson, Denton & Peterson, P.C. are qualified to assist you or to answer any immigration related questions you may have.< –>

Published By:

Gunderson, Denton & Peterson, P.C.
By Brent Gunderson
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099

How the U.S. Supreme Court’s decision regarding the employer-sanction law affects business owners.In 2007, the Arizona State Legislature passed the Legal Arizona Workers Act (“LAWA”), also known as the Arizona employer-sanctions law.  On May 26, 2011, the Supreme Court of the United States upheld the Arizona employer-sanctions law in Chamber of Commerce of the U.S. vs. Whiting, with 5 Justices voting to uphold the law and 3 Justices dissenting.  The Supreme Court’s approval of the law means that the law is here to stay.  How does this affect Arizona business owners? 

The employer-sanctions law has been in effect in

Arizona since January 1, 2008.  The Supreme Court’s decision simply allows the law to continue to be enforced; it does not change how it is enforced.  According to the law, an employer shall not knowingly hire an undocumented worker.  If an Arizonacourt finds that a business knowingly hired an undocumented worker, the first offense can result in a suspension of the business license for up to ten days.  If a business is found to violate the law a second time, the employer’s business license will be permanently revoked.  Factors that are considered when the court is making its decision are:

·         The number of undocumented workers employed

·         Any prior misconduct by the employer

·         The degree of harm resulting from the violation

·         The efforts made by the employer to comply with the applicable requirements

·         The duration of the violation

·         The role of the directors or officers in the violation

If the offense results in a business license being suspended, it will apply only to the licenses at the location of the infraction. 

A business does not violate the employer-sanctions law based solely on the fact that it hired an undocumented worker.  In order for sanctions to be imposed, the state must show that the business knowingly hired the undocumented worker.  The Supreme Court found that “an employer acting in good faith need have no fear of the sanctions.”  One way for a business to show that it did not knowingly hire an undocumented worker is to use the federal E-Verify system, which is actually now mandatory under LAWA (despite the fact that it was intended as a “voluntary” program, and  that participating employers must waive significant legal rights in order to participate).  If a business uses the E-Verify system, the state will have an even greater challenge of showing that the employer knew that it was hiring undocumented workers. 

According to the Supreme Court’s majority’s opinion, “for companies that are playing by the rules and using E-Verify in good faith, there’s virtually no risk that they will be captured by the

Arizona employer-sanctions law.”  [Note, however, that the Justice writing that opinion did not offer to provide free legal counsel, in the event some unlucky employer doesget bitten by LAWA, despite their subjective “good faith”! ]

With the E-Verify system, it might take as little as a couple of minutes to check the status of each newly-hired employee.   The time spent using the system may prevent future problems with the employer-sanction law.  But keep in mind that most employers are only authorized to use E-Verify to confirm employment eligibility of new hires.  The E-Verify rules specifically prohibit use of the system to check the immigration status of existing employees or others.  Unfortunately, the system is far from fool-proof.  It basically checks the information input by the employer against the Social Security Administration’s database.  An example of where problems may arise is when a new employee has just arrived in the U.S. on a valid, employment-authorized visa.  It may be many days before SSA’s records accurately reflect the status of newly-arrived workers – and if the U.S. employer runs an E-Verify check right away (as required under E-Verify), it is unlikely that employment authorization will be “Confirmed.”

Under the employer-sanctions law, an action against an employer is brought by the county attorney.  Each county attorney can have a different standard for bringing a claim under the law.  For example, a county attorney in

Maricopa County may bring a claim against a business while a county attorney in Pima County may find that same claim to be frivolous and do nothing about it.  The strength with which the law is enforced will depend on the counties in which a business does its business.

In

Arizona, immigration has become a topic of great interest to the state legislators and new immigration legislation is constantly being considered.  At times it may be difficult for a business owner to understand and implement the requirements of the employer-sanction law or other laws imposed by the state or federal government.  A Mesa Arizona immigration attorney can advise you regarding your business’ employment and immigration issues to ensure that your business complies with the necessary laws.

How the U.S. Supreme Court’s decision regarding the employer-sanction law affects business owners.

In 2007, the Arizona State Legislature passed the Legal Arizona Workers Act (“LAWA”), also known as the Arizona employer-sanctions law.  On May 26, 2011, the Supreme Court of the United States upheld the Arizona employer-sanctions law in Chamber of Commerce of the U.S. vs. Whiting, with 5 Justices voting to uphold the law and 3 Justices dissenting.  The Supreme Court’s approval of the law means that the law is here to stay.  How does this affect Arizona business owners? 

The employer-sanctions law has been in effect in Arizona since January 1, 2008.  The Supreme Court’s decision simply allows the law to continue to be enforced; it does not change how it is enforced.  According to the law, an employer shall not knowingly hire an undocumented worker.  If an Arizonacourt finds that a business knowingly hired an undocumented worker, the first offense can result in a suspension of the business license for up to ten days.  If a business is found to violate the law a second time, the employer’s business license will be permanently revoked.  Factors that are considered when the court is making its decision are:

·         – The number of undocumented workers employed

·         – Any prior misconduct by the employer

·         – The degree of harm resulting from the violation

·         – The efforts made by the employer to comply with the applicable requirements

·         – The duration of the violation

·         – The role of the directors or officers in the violation

If the offense results in a business license being suspended, it will apply only to the licenses at the location of the infraction. 

A business does not violate the employer-sanctions law based solely on the fact that it hired an undocumented worker.  In order for sanctions to be imposed, the state must show that the business knowingly hired the undocumented worker.  The Supreme Court found that “an employer acting in good faith need have no fear of the sanctions.”  One way for a business to show that it did not knowingly hire an undocumented worker is to use the federal E-Verify system, which is actually now mandatory under LAWA (despite the fact that it was intended as a “voluntary” program, and  that participating employers must waive significant legal rights in order to participate).  If a business uses the E-Verify system, the state will have an even greater challenge of showing that the employer knew that it was hiring undocumented workers. 

According to the Supreme Court’s majority’s opinion, “for companies that are playing by the rules and using E-Verify in good faith, there’s virtually no risk that they will be captured by the Arizona employer-sanctions law.”  [Note, however, that the Justice writing that opinion did not offer to provide free legal counsel, in the event some unlucky employer does get bitten by LAWA, despite their subjective “good faith”! ]

 With the E-Verify system, it might take as little as a couple of minutes to check the status of each newly-hired employee.   The time spent using the system may prevent future problems with the employer-sanction law.  But keep in mind that most employers are only authorized to use E-Verify to confirm employment eligibility of new hires.  The E-Verify rules specifically prohibit use of the system to check the immigration status of existing employees or others. 

Unfortunately, the system is far from fool-proof.  It basically checks the information input by the employer against the Social Security Administration’s database.  An example of where problems may arise is when a new employee has just arrived in the U.S. on a valid, employment-authorized visa.  It may be many days before SSA’s records accurately reflect the status of newly-arrived workers – and if the U.S. employer runs an E-Verify check right away (as required under E-Verify), it is unlikely that employment authorization will be “Confirmed.”

Under the employer-sanctions law, an action against an employer is brought by the county attorney.  Each county attorney can have a different standard for bringing a claim under the law.  For example, a county attorney in Maricopa County may bring a claim against a business while a county attorney in Pima County may find that same claim to be frivolous and do nothing about it.  The strength with which the law is enforced will depend on the counties in which a business does its business.

In Arizona, immigration has become a topic of great interest to the state legislators and new immigration legislation is constantly being considered.  At times it may be difficult for a business owner to understand and implement the requirements of the employer-sanction law or other laws imposed by the state or federal government.  An immigration attorney can advise you regarding your business’ employment and immigration issues to ensure that your business complies with the necessary laws.

This blog article was written by Mark Egan, an Arizona immigration attorney at Gunderson, Denton & Peterson, P.C.   If you have any questions, or would like to speak to an immigration attorney, feel free to contact us.

< –>

Published By:

Gunderson, Denton & Peterson, P.C.
By Brent Gunderson
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099