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.
IV. Education
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.
V. Housing
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.
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