Guest Worker Permit law leaves immigrants vulnerable

Intermountain Catholic

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In an attempt to provide alternatives for undocumented immigrants to achieve legal status, the Utah Legislature passed and Governor Gary Herbert signed into law H.B. 116 Utah Immigration Accountability and Enforcement Amendments. While the intent of the Legislature may be commendable, the law itself is heavily flawed and its effects may be devastating to the already vulnerable population of undocumented immigrants residing in Utah.

H.B. 116 creates a state-issued Guest Worker Permit for undocumented immigrants currently living or working in Utah. The person seeking a permit would have to pass a criminal background check, pay a fine to the state of $1,000 (if the person entered legally but subsequently violated immigration law) or $2,500 (if the person entered the United States illegally), and show proof of health insurance. The permit would be valid for two years and could be renewed. During the two-year period, the holder would also need to obtain English proficiency at a high school level and maintain employment. A person with a Guest Worker Permit may also apply for a family permit. However, the permits will not be available unless and until the federal government grants Utah a waiver from federal immigration law, or 2013, whichever comes sooner.

While the permits may seem like a good idea, the practical implications of the program are highly problematic. First and foremost, the law is constitutionally flawed, as explained by the Office of Legislative Research and General Counsel during the 2011 session. According to state and national immigration law experts, immigration is a federal issue and must, per the Supremacy Clause of the United States Constitution, be addressed at the federal level. For Utah to issue its own work permits, the federal government would have to agree to waive its immigration laws and give up at least some portion of its authority over immigration. As legislative counsel and other attorneys explained during and after the legislative session, there is no process or provision in federal law for granting a waiver from the laws. In recognition of this, the Legislature delayed implementation of the law until at least 2013.

In other words, the state is taking a long shot, with no sound reason to expect success. This risk might be justified if the bill were not already signed into law. As the matter now stands, however, undocumented immigrants are left in a terribly uncertain state, and even more vulnerable to the unscrupulous. It is not difficult to imagine individuals seizing the opportunity H.B. 116 provides to convince immigrants to pay for assistance with the permit process. Given the $1,000 and $2,500 fine provisions, a profiteer might ask the immigrant to pay that amount up front to secure the permit, while claiming he is only asking for the amount the law requires. Unfortunately, the immigrant may not be aware of the fine print in the law, and the fact that the permits do not exist and may never exist unless the federal waiver is granted. The immigrant is then left significantly poorer with no hope of receiving the promised legal status and no means of seeking legal redress for the fraud committed upon him. Please note, undocumented immigrants should not pay anyone for a Guest Worker or other state-issued permit.

H.B. 116 represents Utah’s great gamble that it can force the federal government to act on immigration reform by taking matters into state hands. While elected officials’ frustration with the federal government on this issue is understandable and shared, placing vulnerable individuals in further jeopardy is not the best means of expressing that frustration.