There have been several decisions issued recently in the immigration area. First, on August 20, 2012, the U.S. Court of Appeals for the Eleventh Circuit agreed with the federal government that most sections of Alabama's restrictive immigration law were unconstitutional on their face because they were preempted by federal immigration law. United States v. Alabama, No. 11-14532 (11th Cir. Aug. 20, 2012). The Eleventh Circuit, however, did reject a facial constitutional challenge to a provision that makes it a crime for an illegal alien to obtain a business, commercial, or professional license, but it indicated that the government could raise the claim in the future if this provision was applied in a discriminatory manner. This result tracks how the Supreme Court of the United States handled the federal government's challenge to a similar Arizona statute that requires police officers to verify the immigration status of all foreign nationals whom they arrest if the officers have a reasonable suspicion that they are here illegally. See Arizona v. United States (U.S. Sup. Ct. June 25, 2012). There, the Supreme Court upheld the Arizona provision from a facial challenge but strongly hinted that it would re-visit the constitutional challenge if there was evidence that Arizona applied the statute in a discriminatory manner.
Second, the permissibility of discovery into the immigration status of workers was the subject of a recent decision in EEOC v. Fair Oaks Dairy Farms LLC, No. 2:11-cv-00265 (N.D. Ind. Aug. 1, 2012). There, the Equal Employment Opportunity Commission ("EEOC") brought an action against Fair Oaks Dairy Farms ("Dairy Farms"), alleging sexual harassment and back pay in violation of Title VII of the Civil Rights Act of 1964. During the course of the litigation, Dairy Farms sought discovery of documents evidencing the visa status of the workers that raised the discrimination claims. The district court granted the EEOC's motion for a protective order, concluding that "[i]migration status is not discoverable when it is relevant only to determine whether an employee can recover back pay in a Title VII claim." To hold otherwise, the district court opined, would interfere with the purpose of Title VII by chilling the filing of meritorious complaints. The district court did not address the relevancy of this information to claims of reinstatement and damages where the immigration status of the claimant may well be extremely relevant to the remedy sought by the EEOC.
Finally, the Superior Court of New Jersey, Appellate Division, issued a decision denying the application of a foreign national for unemployment insurance benefits. Makutoff v. Board of Review, Docket No. A-3444-10T3 (N.J. Sup. Ct., App. Div., July 23, 2012). In this case, the claimant had worked for Society General ("SG") in TN nonimmigrant status under the North American Free Trade Agreement. As a TN, he was eligible to work solely for SG until September 2009, and he remained in lawful TN status only as long as he actually was employed by that company. The claimant applied for unemployment after SG laid him off in October 2008, alleging that he was entitled to benefits through September 2009, when his TN expired. The superior court disagreed. To qualify for unemployment, the applicant must demonstrate, among other things, that he is able and available for work. In this case, the claimant's TN status expired when he was laid off, and he was not eligible to work for anyone else, or even remain in the country, once he was laid off. Under these circumstances, the superior court affirmed a lower court decision rejecting the claim for unemployment benefits for the requested period.