E-Verify Requirement Coming for Most Georgia Employers

The Georgia legislature passed an immigration bill late last week which will require most Georgia employers to use the federal E-Verify employment eligibility verification system for all newly-hired employees by July 1, 2013. Although he expects a constitutional challenge to the law, Georgia Governor Nathan Deal has indicated that he will sign the bill into law this week.

For Georgia employers, the E-Verify requirement is most critical. The Illegal Immigration Reform and Enforcement Act of 2011 (commonly referred to as HB 87) will require private (or non-government) employers with 500 or more employees to begin using E-Verify to check the employment authorization of newly-hired employees by January 1, 2012. The effective date will be extended for employers with fewer employees (July 1, 2012 for employers with 100 or more employees and July 1, 2013 for employers with 11 or more employees). Only full-time employees that work 35 hours or more a week are included in the definition of “employee.” Employers will be required to complete an affidavit confirming compliance with the E-Verify provision in connection with securing a new or renewed business license. In a separate provision, HB 87 strengthens existing requirements on government contracts, requiring certain contractors (even those with 10 or fewer employees) to confirm participation in E-Verify for itself and any subcontractors.

By way of background, E-Verify is an Internet-based system operated by the United States Citizenship and Immigration Services that allows employers to verify the employment eligibility of employees. Nationwide, all employers are required to complete Form I-9 Employment Eligibility Verification forms for newly-hired employees. E-Verify checks employee-provided I-9 information against records contained in Department of Homeland Security and Social Security Administration databases. Pursuant to the federal enabling legislation, E-Verify is voluntary for employers. However, a Presidential Executive Order makes E-Verify mandatory for certain federal contractors. Likewise, several state and local government contractors are required to use E-Verify either by legislation or a governor’s executive order. Several states (e.g., Arizona, Mississippi) have passed laws requiring all employers to use E-Verify.

Georgia’s HB 87 has components similar to those found in Arizona’s controversial immigration laws. For example, the Legal Arizona Workers Act (LAWA) requires all Arizona employers to use E-Verify. Georgia’s HB 87 does not go quite as far, exempting Georgia employers with 10 or fewer employees from the E-Verify requirement. As reported in the January 2011 issue of the Immigration eAuthority, the lawsuit seeking to invalidate LAWA is now being decided by the U.S. Supreme Court. Many analysts expect the lower courts’ decisions finding Arizona’s E-Verify mandate constitutional will be upheld.

Less relevant to employers but perhaps more controversial, HB 87 also contains provisions relating to peace officers having authority to verify the immigration status of persons investigated for a possible violation of any state or federal criminal law. These provisions are similar to Arizona’s other controversial law, the Support Our Law Enforcement and Safe Neighborhoods Act (also known as SB 1070), which compels law enforcement officers to verify the legal status of certain persons reasonably believed to be illegally present in the country. Enforcement of several of SB 1070’s provisions has been prevented on constitutional grounds by a district court injunction (see the July 2010 issue of the Immigration eAuthority) which was upheld just last week by the Ninth Circuit Court of Appeals.

HB 87 also reiterates and re-states an existing law which provides that any employer seeking to deduct business expenses relating to wages or remuneration paid for the performance of physical services in Georgia to an individual in excess of $600 per annum can only do so if the individual is verified as work authorized through E-Verify or if the individual presents a valid license or identification card issued by the Georgia Department of Driver Services.