LEGAL GUIDE
Written by attorney Douglas Brooks Rohan

How the new Georgia Immigration Bill will affect your business

On the last day of the 2011 legislative session, Georgia passed a sweeping immigration bill which will likely impact your business, regardless of size. The Governor is expected to sign the measure, and while there are likely going to be constitutional challenges, it’s still important to know how it will impact you.

Private Employers and E-verify

The bill mandates that all private employers with more than ten employees enroll in the Federal E-verify program. The date on which this will be implemented varies by size of the employer. Those companies that employ greater than 500, will be required to comply starting January 1, 2012. Companies who employ between 100 and 499 full time individuals, will be required to comply by July 1, 2012. Those companies who employ between 11 and 99 individuals will have to comply by July 1, 2013. The statute goes on to define “full time" as anyone who works “not less than 35 hours per week." See Section 12 - HB87 (AM 35 0260).

The employers will have several requirements placed on them, all tied to certification and licensure by the state. If you are required to obtain a business license under Title 43 (i.e. hairdresser, real estate agent, massage therapist, etc.) you will be required to provide the State with an affidavit that you are in compliance with the law. Compliance means you complete an affidavit swearing you either, (a) have 10 or fewer employees and are not required to use E-verify, or (b) have 11 or more employees and are participating in the E-verify program. The number of employees is based upon the total full time employees as of January 1 of each year. Under this scenario, you could have a seasonal business where you regularly employ five individuals, but when Valentine’s Day rolls around, you can hire 150 employees and not check their status against E-verify records (as they were not employed on January 1). Once the holiday is over, and you lay off all the seasonal employees, you go back to your five employees and fall below the threshold required to use E-verify.

Private Contractors who bid on Public Works Projects

The statute defines a “contractor" as a person or entity that enters into a contract for the physical performance of services with a public employer. Prior to each bid, a contractor will be required to provide a signed and notarized affidavit attesting to the fact that the contractor is registered with E-verify, provides the user ID number of that contractor, and certifies that the contractor will continue to use E-verify for the pendency of the contract. Further, each contractor will secure a similar affidavit from each sub-contractor and sub-subcontractor it contracts with for that job. It is the duty of the receiving contractor to forward the affidavit up the chain until it is with the general contractor to be forwarded to the public entity. Each such affidavit will be considered an open public record and must be kept on file by the receiving contractor, subcontractor, or sub-subcontractor for at least five years.

At the end of each year, the public employer is required to submit a compliance report to the state auditor. The state auditor will then conduct an annual compliance audit on at least one-half of the reporting agencies. Any violation of the reporting requirements will be a felony criminal offense punishable by not less than one and not more than five years in confinement and by a fine of not more than $1,000.

Transporting or Harboring an Illegal Alien

The new law will place significant criminal penalties on any individual (citizen or not) who is found to be transporting an illegal immigrant while committing “another criminal offense." During the debate on the legislation, this was briefly limited to only felony offenses - the idea being to crack down on human traffickers. However, the final bill reverted back to the more strict language which includes all criminal offenses. Therefore, any individual who has an illegal immigrant in their vehicle and fails to use his turn signal properly or fails to come to a complete stop runs the risk of being found guilty of the additional offense of transporting or harboring an illegal alien. A first offense is a misdemeanor, while a second offense, or a first offense with the intent of making a profit, is deemed a felony, and shall be punished by not less than one year and not more than five years in confinement and a fine of not less than $5,000 and not more than $20,000. See Section 7.

There are several exclusions carved out to this provision, including government employees (like MARTA drivers) and law enforcement officials. However, there is no exception for churches, private medical transportation, or individuals who are just looking to help a stranded motorist by dropping them off at the nearest gas station.

Inducing or Enticing an Illegal Alien to Enter the State

For those readers who have friends that may work along the border of Georgia, this provision could be particularly dangerous. A person who induces, entices, or assists an illegal alien to enter the state commits a misdemeanor offense the first time. However, if that action is with the intent to make a profit, then the individual is committing a felony, punishable as described above. The example that I keep thinking of is Joe’s Tree Service (a fictional company) based out of Phenix City, AL just got a big job after the recent storms to clean up a neighborhood in Columbus, GA. He usually has two crews of six guys, but he needs some more hands to get the job done quickly. On the way out of town, he picks up two day laborers to help out. After he crosses into Georgia, he is stopped for speeding. After a quick check by the officer, it turns out the two guys Joe picked up are illegal, and Joe is now charged with two felony counts of inducing an illegal alien to enter the state and faces a penalty of 2-10 years in prison.

Hopefully this information will help you and your small (or even large) business navigate the complex waters of this new immigration legislation.

Additional resources provided by the author

https://www.facebook.com/#!/pages/Atlanta-GA/Rohan-Law-PC/163770873671772

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