Decline in Unauthorized Aliens Residing in US

Whether it is the economy or an increase in worksite enforcement, the number of unauthorized aliens in the United States has declined since 2008. According to the Congressional Research Service report published September 22, 2001, an estimated 10-11 million unauthorized aliens lived in the U.S. as of 2010, compared to over 12 million in 2007. The report surveyed the U.S. Census Bureau's Current Population Surveys (CPS) published since 1986, and the Department of Homeland Security (DHS) Office of Immigration Statistics (OIS) reports based on the U.S. Census Bureau's American Community Survey (ACS) since 2000.

The report analyzed data collected not only on the number of unauthorized aliens in the U.S., but also countries of origin, residence in the United States, and year of arrival. The majority of unauthorized aliens residing in the U.S. as of 2010, approximately 30% of the total population, entered between 2000 and 2004. Only 9% of the current unauthorized alien population entered the U.S. between 2005 and 2009 according to a 2010 CPS report. Unauthorized aliens migrating from Mexico have declined since 1986, from 69% to 57% in 2010, while aliens originating from Asia have increased by 6%. The greatest number of unauthorized aliens continue to reside in California and Texas. According to the report, Colorado is not even in the top ten states "with unauthorized resident aliens" with a 2010 headcount between 140,000 to 325,000.

Contributing factors to the rise and fall of the unauthorized alien population in the U.S. since 1986 included economics, legislation, and enforcement. Some analysts attributed the rise of unauthorized aliens to "lax enforcement of employer sanctions," introduced in 1986 (Immigration Reform and Control Act (IRCA) of 1986). These analysts point to the decrease in unauthorized aliens since work site enforcement increased in 2007-2008. However, the decrease in population since 2007 may also be attributed to the 2008 housing downturn and the subsequent recession.

In addition, the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) "may have inadvertently increased the population of unauthorized resident aliens." Among other penalties, the act introduced the three and ten year bars to admission for aliens unlawfully present in the US for 180 days or more. These provisions "coupled with incrased resources for border enforcement" in the wak of the 911 terrorist attacks, according to the report, have created a "caging effect" that has "stymied what had been a rather fluid movement of migratory workers along the southern border." The result of IIRIRA "raised the stakes" and "created an incentive for those who succeed in entering the United States to stay."

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Requirements of Employers for Determining the Employment Eiligibility of Foreign Workers

As individual States continue to pass laws in an effort to “protect” their citizens from what they perceive to be harm from undocumented immigrants, the constitutionality of the laws continues to be challenged in our federal courts and courts of appeal. Last week, the Legal Arizona Workers Act, an Arizona state law prohibiting employers from knowingly or intentionally employing an unauthorized immigrant was granted a writ of certiorari by the United States Supreme Court.


The petitioners allege that the Arizona statute is unlawful because it is preempted by federal immigration laws that regulate the employment of non-citizens. The lower courts upheld the statute, finding that it was not preempted by federal law. The Supreme Court will address three questions; 1) Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2); 2) Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note, and 3) Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

This proves to be a fundamental decision for many states, as once determined it will serve as precedent and a number of states have similar laws governing requirements of employers for determining the employment eligibility of foreign workers.

http://www.legalactioncenter.org/supreme-court/court-consider-legality-arizona-law-sanctioning-employers-who-hire-unauthorized-worker

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