When individual owners and sole proprietors based in the Town of Herndon complete their business license application forms this month, they will have to complete one extra piece of paperwork — a residency status affidavit requiring them to legally swear that they are authorized to work in the United States or face the denial of licenses.
The measure, introduced by Herndon's Town Council with a vote of 6-1 during a public hearing in October of last year, is another part of the council's campaign to get tough on illegal immigrants doing business in Herndon, but some attorneys and business owners are saying the requirement is an unnecessary added layer of bureaucracy that may be in violation of constitutional law.
"If somebody took [the affidavit requirement] to federal court, it would be very difficult for a judge to uphold," said Chuck Tievsky, an immigration attorney based in Reston. "In this country, you don't need the right to work to register and own a business, you can be a tourist — or an international investor. There is no law impeding these people from owning and operating a business in our country."
Local Herndon business licenses, which are a requirement for any company, regardless of size, to operate a business in town limits, are a way for the town to collect taxes and monitor what businesses are operating in town, according to town attorney Richard Kaufman. The residency status affidavit, which must be signed in the presence of a registered notary public, is only a requirement for sole proprietors and individual business owners applying for a business license. In these cases applicants must pay a $30 fee and agree to pay a percentage on total receipts when they do more than $150,000 in business, according to the Town of Herndon. The Town of Herndon collected more than $3 million in town revenue from business licenses for this year, according to the town's adopted budget.
It could not be made clear how many businesses would need to file the affidavits, as Herndon did not collect information on the number of owners of a business prior to this year, according to Herndon public information officer Anne Curtis.
THE COUNCIL passed the measure, which requires "the town manager to implement and enforce procedures to assure that illegal aliens do not receive business licenses," according to the affidavit. It was passed primarily in response to a July 24, 2006 opinion issued by Virginia Attorney General Robert F. McDonnell stating that licenses should not be issued before an issuing party completes a check of an applicant's residency status, according to Kaufman.
"The attorney general's opinion is a part of the law in that he is a source of the law — and the town council wanted to respect those opinions," he said.
McDonnell's opinion is rooted in the assumption that since it is illegal to employ an undocumented worker in the United States it should therefore also be prohibited for that individual to "seek a license to conduct business in" Virginia.
THE PROBLEM with the measure, Tievsky said, is in its restrictions that solely impact individual business owners, its preemption of the federal government to enforce immigration law and its unlawful restrictions to international trade.
For instance, if a British national traveled to Herndon on a tourist visa and decided to open a restaurant as an investment, as long as it was staffed by legal workers, it would be in violation of no federal immigration law, according to Tievsky. Under Herndon's new requirement, that UK resident would not technically be able to acquire a license, as he or she would theoretically still be a UK citizen without work authorization status.
"I think the town sees this as an issue of investment vs. employment and they're assuming that if you're a sole proprietorship that you'll be working for the business and that's not necessarily true," Tievsky said. "But this is obviously not targeted to the UK residents who want to open a business, it's targeted at the El Salvadorans."
"The reality is that you don't need legal work authorization status to own a business in the United States … there are no foreign business limitations in this country."
And since signing the affidavit is only required of individual owners, the law in itself can be easily evaded by signing on a second individual, regardless of immigration status, to form a corporation and be out of the law's jurisdiction.
Further problems arise when the requirement is seen as a measure to enforce immigration law, which, Tievsky said, is a right strictly reserved for the federal government in the U.S. Constitution.
Kaufman declined to specifically comment on the measure other than to say that it is lawful and legally defensible.
FOR BUSINESS owner Cynthia Donavin, who has run the Classical Ballet Academy and Theatre in Herndon for the last 20 years, the town's new business owner residency status requirement is welcome.
"I feel fine about it, because I am a legal resident and I have no problem proving that," Donavin said. "I think that if it keeps illegal aliens from owning a business in town, then it is a good thing."
"People don't remember sometimes that they're illegal, what they've done is against the law and if they want to own a business they can come back and enter the right way."
While Herndon business owner Freddi Donner said she has no problem with proving her residency status in the town, the new requirement is just an added and unnecessary layer to an extensive application process.
"In one sense I agree that you need to protect the business environment in Herndon, but also I see it as something that could drive businesses away," said Donner, who owns For Health and Balance, a nutritional and fitness center on Herndon Parkway. "There are already so many steps to this application and this is just one more hoop business owners have to jump through."
"If I were setting up a new business in Herndon and I learned about this I would definitely see it as a detriment to me wanting to work and do business in town."
THE HARDEST THING for local attorney and former Herndon mayor Mike O'Reilly to grasp is understanding where the damage comes when an illegal immigrant holds a local business license.
"I don't personally see how anyone holding a business license and paying taxes to the town, regardless of their immigration status, is a danger to the community and public safety," O'Reilly said. "I think you'd be hard-pressed to find anyone to tell you a solid reason why that would negatively impact Herndon."
Tievsky agreed.
"I think that in this country, the more economic involvement that you have, the better — it's what this country was built on," he said.
If immigration status continues to play into one's ability to function basically in society some serious moral questions will be raised, Tievsky added.
"What's the next step?" he said. "If someone's house is burning down should the firefighters have to qualify if that person is a legal resident before putting out the fire?"