Virginia General Assembly
2012 Pre-Session Report
by Claire Guthrie Gastañaga
October 31, 2011
Virginia has a long history of passing legislation to identify and seek removal of unauthorized immigrants, beginning with a law enacted during the eugenics movement that required Virginian's mental health institutions to check immigration status on admission and report to the federal authorities anyone not in the country legally. Beginning in 2003 and reaching a crescendo in 2008, legislation has been introduced in every session of the General Assembly that directly or indirectly affects Virginia's immigrant communities and those who serve.
The number and scope of bills has varied depending on political and environmental factors. The peak year to date, 2008 when over 130 bills were introduced, was driven by hotly contested legislative elections in certain legislative districts in which Democrats and Republicans, alike, made immigration related issues a key part of their campaign platforms and voter communication. The 2011 election cycle has seen some of the same rhetoric we saw in the 2007 election cycle, and the tone reflects increasing national attention on enforcement only approaches to immigration reform and passage of draconian, wide-reaching legislation in Arizona, Alabama and Georgia.
Over the years, Virginia has enacted nearly 50 laws with direct effects on immigrants and aliens. While positive legislation has passed that deals with human trafficking and wage theft, most of the laws now on the books in Virginia are restrictions on the rights or benefits of "aliens" or immigrants, including the rights and benefits of persons lawfully present in the United States.
Here's a summary of key laws in effect in Virginia and the outlook for legislative action in the 2012 General Assembly Session:
I. Law Enforcement
There have been a series of bills enacted to increase the ability of law enforcement to identify and move toward deportation "criminal aliens" -- documented and undocumented immigrants charged with and/or convicted of criminal violations of Virginia law. Prior to 2008, Virginia law required immigration status checks after conviction of a crime upon entry into a jail or prison and again as a condition of probation or parole. Since 2008, Virginia law also requires that immigration inquiries be made of every person taken into custody on a criminal charge. In addition, Virginia is a statewide participant in the Secure Communities program that forwards fingerprints of those arrested to federal authorities for an immigration status check. Another law passed in 2008 establishes a presumption against bail for persons in the country without authority who are accused of committing certain serious criminal offenses.
Passage of legislation increasing the focus on determining the status of individuals taken into custody by police is seen as likely to deter people from coming forward to report crimes or to seek services if they are victims of crime. Legislation intended to mitigate this adverse effect by protecting victims and witnesses to crime has passed the Virginia Senate three times unanimously, but has been rejected in a committee of the House of Delegates. This legislation would have established a statewide policy against routine inquiries into the immigration status of individuals who are victims or witnesses to crime and are cooperating with authorities.
Outlook for 2012 General Assembly Session:
Legislation defeated in the past but likely to be introduced again:
1) bills that give line officers increased authority to take people into custody on minor offenses, including driving without a license;
2) legislation to require or permit immigration status checks whenever someone is stopped lawfully by the police (not enjoined by the Alabama Court); and
3) legislation to provide additional 287g authority at the state and local level.
New legislation likely to be copied from other states:
1) legislation to require that persons caught driving without a license be taken into custody if the police officer cannot confirm, have their status checked by a magistrate and, if found to be in the country without authority, be detained until trial or turned over to federal authorities (not enjoined by the Alabama Court); and
2) legislation to make it a state crime not to carry immigration documents (not enjoined by the Alabama Court).
II. Business and Employment
Demands continue to increase that the General Assembly impose sanctions on employers who hire persons in this country without the legal authorization to work. To date, Virginia has enacted the following laws that affect Virginia employers and contractors:
1) a longstanding law making it a misdemeanor to hire an unauthorized worker (in effect since1977 but likely unconstitutional);
2) a requirement that every state and local contractor sign an agreement to abide by federal immigration laws;
3) authority for the State Corporation Commission to revoke the right of any employer to do business in Virginia if convicted of federal immigration law violations;
4) a requirement that state agencies use e-Verify to check new workers; and
5) a requirement that state contractors with more than 50 employees seeking contracts in excess of $50,000 use e-Verify to check new workers.
Outlook for 2012 General Assembly Session:
The following bills defeated in past sessions are likely to be reintroduced this year:
1) legislation to require all employers, all state and local contractors, and all state license holders (like doctors and lawyers) regardless of size of business to use e-Verify;
2) legislation to authorize private lawsuits or lawsuits by the Attorney General against employers who are alleged to have hired undocumented workers (currently enjoined from going into effect in Alabama);
3) legislation to limit the use of foreign languages in the workplace;
4) legislation to require proof of legal presence to get a business or professional license; and
5) anti-harboring legislation that makes it a state crime to transport or conceal a person who is in the country without authority (currently enjoined from going into effect in Alabama).
New proposals likely to be copied from other states:
1) A bill to establish a state crime applicable to immigrants soliciting work or working without legal authority (an anti-day laborer bill) (currently enjoined from going into effect in Alabama);
2) legislation to prohibit tax deductions for wages paid to an unauthorized immigrant (currently enjoined from going into effect in Alabama);
3) legislation to ban enforcement in court of any contract made with an unauthorized immigrant (with limited exceptions for medical care, food) (not enjoined by the Alabama Court); and
4) legislation to make it a crime to enter into a business transaction with an unauthorized immigrant (not enjoined by the Alabama Court).
III. Social and Medical Services
Virginia passed a law in 2005 requiring proof of legal presence for state welfare and medical benefits. Other legislation to limit access to services by undocumented immigrants has been unsuccessful, but remains a perennial topic of legislators.
For the first time in the 2011 legislative session, there was interest on the part of some legislators, immigrant advocates and health care providers in closing the loophole that disqualifies legal immigrants for Medicaid until after 5 years of residence. Preliminary studies show that investing in preventive care, particularly for pregnant women, can reduce long term costs imposed on the health care system.
Outlook for the 2012 General Assembly Session
Bills considered in past sessions and likely to be reintroduced this year include:
1) legislation to require all recipients of state and local funds to insure no services paid for with such funds were made available to anyone not lawfully present;
2) legislation to restrict the ability of state and local agencies to offer services or print materials in languages other than English, potentially driving up the cost for service providers that are recipients of federal assistance required to provide language access;
3) anti-harboring legislation that would impact the ability of charities to offer food, shelter or transportation to anyone in the country without authority (currently enjoined from going into effect in Alabama);
4) "anti-sanctuary" laws that authorize individual state and local employees to report alleged immigration law violations and prohibit interference in such private action by state or local officials; and
5) positive legislation to expand eligibility for Medicaid benefits for some legally present immigrants.
Virginia has long had in place strict domicile requirements that make it impossible for undocumented students to qualify for in-state tuition at Virginia colleges. All of the four year institutions currently have policies against admitting students who are undocumented, even as out of state students.
Efforts to pass legislation prohibiting admission to public post-secondary education and to codify prohibitions on in-state tuition have been introduced year after year and defeated.
Similarly, legislation to require local school divisions to count students who are foreign born and to require proof of legal presence has been defeated.
A state level "Dream Act" passed the Senate with bi-partisan support but died in the House. This legislation would have offered tax-paying undocumented Virginia residents who graduate from Virginia schools the chance to be eligible for in-state tuition if they are in the process of adjusting their status. It would not have overridden policies at the state institutions against admission of such students, however.
There has been enhanced recognition that there is a need for increased state support for programs to help immigrants along the path to citizenship and full civic engagement, and for additional resources to help local school divisions address limited English proficiency both among school age children and adults. Ongoing budget shortfalls have crushed hopes for passage or funding of such initiatives but there is continued interest among legislators from impacted localities across Virginia.
Outlook for the 2012 General Assembly Session:
Legislation introduced and defeated in the past likely to be reintroduced includes:
1) legislation to ban attendance at Virginia public colleges by undocumented students;
2) legislation to prohibit undocumented students from qualifying for in-state tuition;
3) legislation to require local school divisions to ascertain the citizenship or immigration status of all students and to make reports to state authorities regarding the number of undocumented students, the number of foreign born students and the number of students needing English as a second language courses (not enjoined by the court in Alabama); and
4) possibly, the state level "Dream Act," although the negative focus during the 2011 elections on the votes of legislators who previously supported the state level "Dream Act" make it highly improbable such a bill would pass the Senate in the 2012 Session. There continues to be no chance it would get out of committee in the House of Delegates, even if it were to pass the Senate.
In past legislative session, lawmakers, particularly those from Northern Virginia, have focused significant legislative efforts on measures to "crack down on" those who violate overcrowding ordinances, including giving enhanced enforcement tools to zoning administrators, increasing fines for violators and enacting new limits on the number of unrelated persons who may live in a single family home.
Little thought has been given to the precedent set in each of these areas, the probability of disparate enforcement or the likely long term adverse effect on the availability of affordable housing of such measures. As the availability of affordable housing continues to atrophy, there are quality of life implications that have not been carefully considered in the emotionally charged atmosphere that continues to permeate this discussion.
Outlook for the 2012 General Assembly Session
Legislation copied from other states likely to be introduced this session:
1) restrictions on contracting by or with undocumented persons that would make unenforceable contracts for sale or lease of real estate (not enjoined by Alabama court); and
2) legal presence requirements for real estate sales or leases.