LEGAL GUIDE
Written by attorney Emily Eagan Macheski-Preston

E-Verify and the Illegal Immigration Reform Act

Last year, the General Assembly passed the “Illegal Immigration Reform and Enforcement Act of 2011." Although portions of this Act have been challenged in the courts, one important provision still applies to local businesses: private employers with more than ten employees must use E-Verify when hiring employees. E-Verify is a free internet-based federal work authorization program offered by the United States Citizen and Immigration Services, typically as a companion to I-9 forms. Under Georgia’s new Immigration law, all employers with more than ten employees must now check the E-Verify status of new employees within 3 days of the first day the employee begins work. In addition, the employers are still required to submit the federally required I-9 forms.

The E-Verify requirement goes into effect in stages depending on the number of employees your business employs. Employers with more than 500 hundred employees were required to register and use E-Verify before January 1, 2012. Employers with 100-499 employees must register and start using E-Verify before July 1, 2012. Finally, employers with 11-99 employees must register and start using E-Verify before July 1, 2013. To determine the amount of employees your business hires, consider the amount of employees you employed on January 1 of the applicable year. For example, in 2012, the number of employees employed by your business is the number of employees you employed on January 1, 2012. An “employee" is someone who works under your control at least 35 hours a week.

The U.S. Citizenship and Immigration Services’ website lists the requirements for registering for E-Verify and details the enrollment process. The website also provides an enrollment checklist to help business enroll in the program. An employer may only register one time, but may register multiple “hiring sites." It is important for businesses to keep track of their federally assigned E-Verify number and the date of registration with E-Verify (also referred to by E-Verify as the date of authorization for use).

Once the E-Verify requirements go into effect, all businesses will have to submit an affidavit along with their applications for city or county business licenses and occupational tax certificates. The affidavits are available on the Georgia Department of Labor’s website. Each business will have to declare whether they are authorized to use E-Verify or are exempt from the E-Verify requirements (meaning the business employs ten or less full-time employees). Without the affidavit, the business will be unable to apply for new licenses or renew existing licenses. Once a business submits an affidavit, the business cannot later submit a renewal application with a different E-Verify number unless the business explains the reason for the new number (hence the importance of keeping track of your user number).

Any person who submits a false affidavit can be convicted of “false swearing" under Georgia law, which carries the punishment of a fine up to $1000.00 and imprisonment for one to five years. In order to avoid this punishment, employers must act in good faith and attempt to comply with the law. In addition, to avoid liability employers and businesses must make sure to comply with the requirements of E-Verify and the federal requirements for hiring new employees (including submitting federally required paperwork such as I-9’s).

The Illegal Immigration Reform Act also contains additional requirements for contracts with public entities (for examples, subdivisions of state and local governments) and for receiving certain public benefits. Although the legality of certain parts of the Act is still uncertain, for now these portions are still valid laws in Georgia. Should you have any questions about complying with E-Verify requirements, please contact Emily at 229-242-7562 or by email at emily.preston.colemantalley.com

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