September 06, 2011 BY Meredith Guerrero
Immigration Reform Comes To Georgia
Georgia has joined the ranks of such states as Arizona and Utah in their efforts to crack down on illegal immigration. On Friday, May 13, 2011, Governor Nathan Deal signed the Georgia Illegal Immigration Reform and Enforcement Act of 2011 (House Bill 87) into law. The law, which goes into effect on July 1, 2011, increases the state’s enforcement powers and imposes requirements on employers to check the immigration status of new hires.
The law requires every private employer with more than ten employees to register with and use the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all newly hiredemployees. The law does not require employers to use E-Verify to review the immigration status of already existing employees. The E-Verify requirement will be phased in based upon the number of employees working at the business. Employers with 500 or more employees will be required to begin using E-Verify by January 1, 2012. Employers with 100 or more but less than 500 employees must begin using E-Verify by July 1, 2012, and employers with more than 10 and but less than 100 employees must begin by July 1, 2013.
Contractors bidding to provide services to public employers are also affected by the law. Before considering a bid from a contractor for the physical performance of services, a public employer must receive a signed, notarized affidavit from the contractor attesting that: (1) the contractor has registered with, is authorized to use, and used the E-Verify system; (2) the user identification number and date of authorization for the affiant; (3) the contractor will continue to use the E-Verify system; and (4) in the performance of its contractual duties, the contractor will only hire subcontractors who present an affidavit to the contractor attesting to their compliance with the E-Verify system requirements imposed by the law. The Georgia Department of Audits and Accounts will create and post a form affidavit satisfying these requirements on its website by August 1, 2011.
Employers should be careful in how they incorporate the E-Verify system into their hiring process in order to avoid complaints against them from applicants and new hires. As noted above, the law does not require employers to check the status of existing employees. Also, if the E-Verify system determines that a new hire is tentatively non-compliant, the individual has the option of contesting E-Verify’s finding within eight business days. If the employee contests the tentatively non-compliant finding, the employer may not take any adverse action against the employee pending a final decision on the employee’s status. If the employer does take an adverse action against the employee and the employee is successful in his or her challenge to the finding, the employee has the right to file a claim against the business with the U.S. Department of Justice. If the employee does not challenge the non-compliant finding, it is considered a final non-confirmation and the employer may terminate the individual’s employment.
As an enforcement mechanism, Georgia’s immigration law mandates that counties and municipalities may not issue or renew business licenses, occupational tax certificates or other documents required to operate a business unless the business provides evidence either that it is authorized to use the E-Verify system or that it employs ten or fewer employees and is, therefore, exempt from the requirement. The Attorney General’s office will provide a standardized form affidavit which may be used as acceptable evidence demonstrating use of the E-Verify system or that the provisions do not apply. This form affidavit will be available on the Georgia Department of Law’s website on or before January 1, 2012.
The Georgia Attorney General is authorized by the law to investigate and bring any criminal or civil action he or she deems necessary to ensure compliance with the law. Employers who are found to have committed a good faith violation of the law will be given 30 days to demonstrate to the Attorney General that they have come into compliance with the requirement to register and use the E-Verify system. Although the law does not contain specific penalties for violation of the requirement that employers register and use the E-Verify system, as explained above, these businesses will not be able to renew or obtain business licenses from municipalities and counties.
The law also makes it a felony for individuals to willfully and fraudulently use counterfeit or fictitious identifying information to obtain employment (aggravated identity fraud). Aggravated identity fraud is punishable by one to fifteen years imprisonment and/or a fine up to $250,000. Law enforcement officers are authorized by the law to verify the immigration status of people suspected of certain crimes and detain individuals suspected of being in the United States without proper documentation. Unlike Arizona’s law, the Georgia law does not permit law enforcement to detain someone solely because they suspect that the individual is in the country illegally. The individual must first be under investigation for a criminal offense and unable to produce documentation proving his or her status. Individuals who knowingly transport or harbor undocumented immigrants may also be penalized in certain circumstances.
On May 26, 2011, the U.S. Supreme Court upheld an Arizona law that penalized businesses that hire undocumented immigrants by revoking or suspending their business licenses. The Court’s majority opinion held that Arizona’s law is not preempted by federal immigration law. Because the portion of Georgia’s immigration law that requires businesses to use E-verify is similar to the Arizona law upheld by the Supreme Court, it is likely that this portion of Georgia’s law will also survive a challenge that it is preempted by federal immigration.
Opponents of Georgia’s immigration law have expressed concern that the law will allow racial profiling. In early June 2011, several groups – including the American Civil Liberties Union and the Southern Poverty Law Center – filed a lawsuit in Atlanta’s federal court challenging the legislation. These groups argue that the law is unconstitutional because only the federal government can create immigration legislation, and hope to obtain injunctive relief blocking enforcement of the law. Although federal courts granted injunctions blocking Arizona and Utah’s immigration laws, some Georgia legislators have stated that they were careful to draft Georgia’s law in a way that avoids the constitutional challenges encountered by Arizona and Utah.
Business groups, including the Georgia Chamber of Commerce, have raised fears that the law will have a negative effect on tourism and could discourage companies from doing business in Georgia. They also complain that it will make the hiring process more cumbersome and expensive. Georgia agriculture groups worry that the law will put them at a disadvantage to growers in other states. Some studies suggest that Arizona’s law has cost Arizona as much as $250 million in convention business and thousands of jobs.
Supporters of Georgia’s immigration law counter that the law is necessary to reduce the drain on the state’s resources caused by the dramatic influx of undocumented immigrants in the last several years. Reports issued by the U.S. Census Bureau, the Department of Homeland Security and the Pew Hispanic Center indicate that Georgia currently has somewhere between 300,000 and 480,000 undocumented immigrant residents – which puts Georgia about sixth in the nation for undocumented immigrants living within its borders.
Although a lawsuit challenging the Georgia Illegal Immigration Reform and Enforcement Act of 2011 has been filed, there is no guarantee that a court will enjoin the law from taking effect. Georgia employers should begin review of their hiring policies now to ensure a smooth transition into the new requirements. If you have specific questions regarding the provisions of the law or how it will affect your business, or if you need assistance updating your employment policies, please contact any of the members of Drew Eckl and Farnham’s Employment Law Section - Joe Chancey at (404) 885-6222 or [email protected], Dan Kniffen at (404) 885-6411 or [email protected], or Meredith Guerrero at (404) 885-6321 or [email protected]
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley