Federal, State Immigration Law Reform: What Employers Need to Know

By HunterMaclean Attorneys

Published in Business in Savannah

On September 21, 2011, the Judiciary Committee of the United States House of Representatives approved a proposed bill that would mandate the use of E-Verify for all new hires in the U.S. The bill will now go to the full House of Representatives for a vote, but a date has not been determined. The proposed bill is the latest in a series of state and federal attempts to create a solution to immigration and employment concerns across the nation.

Georgia already has a mandatory E-Verify law, House Bill 87. Every public employer and most private employers will eventually be required to use E-Verify to determine the work authorization of new employees. Georgia employers with 500 or more employees will be required to use E-Verify starting January 1, 2012; employers with 100 to 499 employees will be required to use it starting July 1, 2012; and, employers with 10 to 99 employees will be required to use the program starting July 1, 2013.

Before any county or municipal corporation issues or renews a business license, occupational tax certificate, or other document required to operate a business, the recipient must show it participates in the E-Verify program or that the provisions of HB 87 do not apply (typically by having less than 10 employees). In addition to these requirements, a public employer may not enter into a contract unless the contractor and its subcontractors have registered for and participate in E-Verify.

The Georgia law and the proposed federal legislation build upon existing federal law. Beginning with to the Immigration Reform and Control Act of 1986 (IRCA), employers have been prohibited from knowingly hiring or continuing to employ any person not authorized to work in the United States. Employers have three business days to verify a new employee’s identity and authorization to work. To conduct this verification, the employer completes Form I-9, also known as an Employment Eligibility Verification Form.

E-Verify has been mandated for use by federal contractors since September 8, 2009, but has been voluntary for other employers. E-Verify is a system linked to various federal databases that allow employers to instantly check the employment eligibility of new employees. E-Verify does not replace Form
I-9. However, the renewed federal and state focus on E-Verify reminds employers that immigration enforcement is very real. In response to determined efforts by federal and state governments to crack down on employers with illegal immigrant employees, employers should be doing all they can to ensure compliance with immigration-related laws, including following I-9 procedures and staying current with new E-Verify requirements.

All employees hired after November 6, 1986 must complete the Form I-9. A properly completed I-9 provides the employer with a good faith defense against charges that it knowingly hired, or continued to employ, unauthorized alien workers. Federal immigration officials are conducting more Form I-9 audits, with the focus on employers rather than illegal immigrants. Employers who have not properly checked their employees’ eligibility status could face fines of up to $1,100 per paperwork violation, with each mistake on a single I-9 constituting a separate violation.

On the other hand, employers should be careful not to discriminate against employees because of citizenship or national origin. The Immigration Act of 1990 does not allow an employer to ask applicants for more or different documents than those required by the regulations. An employer cannot refuse to honor a document that appears reasonably genuine on its face. An employer cannot selectively require documents from one group of employees that are beyond the requirements of the I-9 regulations or E-Verify. Discrimination on the basis of national origin or citizenship can result in a fine of up to $11,000 per violation, as well as separate Title VII claims.

Because the line between non-discrimination and vigilance is a thin one, employers should conduct periodic audits to ensure that their documents and internal processes comply with these seemingly contradictory laws.