A major part of the state’s new immigration enforcement law is triggering some tricky questions -- and confusion -- among Georgia employers.
A provision in the law requires many businesses to use the federal E-Verify program to ensure their newly hired employees are eligible to work in the United States. Proponents say it will help block one of the main things that attracts illegal immigrants to Georgia: jobs.
On the other side, critics say that while the online program is free it will cost them time and money to use it. They also see holes in the law, which could block companies from getting business licenses if they don’t comply. And they question how the law will be enforced.
While some parts of Georgia’s law are tied up in federal court, other parts have been left untouched and took effect July 1. The E-Verify requirement, however, is being phased in, starting on Jan. 1 for the state’s largest employers. Smaller businesses will be required to comply later.
Some companies are unsure which employees must be submitted to the federal database for clearance or how to count workers to determine if they are required to use E-Verify.
Bill Coleman said his Alpharetta-based Crabapple Landscape Experts business temporarily employs around 30 seasonal workers – mostly Mexicans -- through the federal H-2B seasonal guest worker program every year. So must he run these temporary workers through the E-Verify system even after the federal government approves their visas and clears them to work in the United States?
“I would hope not,” Coleman said. “That would be stupid… We don’t have a firm answer on that.”
But the answer is yes, said the author of the state law, state Rep. Matt Ramsey, R-Peachtree City. Ramsey pointed to federal rules that say employers who use E-Verify must use it for all new employees.
“We can’t modify the way E-Verify is used. We can only require the use of it,” Ramsey said.
A spokeswoman for U.S. Citizenship and Immigration Services, which helps administer the E-Verify program, said she was looking into this issue Friday.
Many more questions about Georgia’s law surfaced at a Society for Human Resource Management Atlanta workshop at the Cobb Galleria Centre this week, attended by dozens of Georgia businesspeople.
Ramsey and Geetha Adinata, an attorney who led this week’s workshop, provided some answers in interviews after the workshop this week:
• For Georgia-based businesses, employees working in any state count toward the total number of employees, which is used to determine if and when the new law applies to each employer.
• Workers from subsidiary companies count toward the number of overall employees when those companies have the same federal tax identification numbers. Employees from companies with different tax identification numbers would be counted separately;
• Seasonal workers don't count unless they are employed by companies on Jan. 1 during the year those businesses must confirm for the state that they are using E-Verify.
Immigration watchdogs say employers have a responsibility to ensure they are hiring legal workers, particularly amid high unemployment in Georgia and across the nation.
"One of the primary goals of this legislation is to ensure we have a legal workforce in Georgia," Ramsey said of Georgia's new law.
Part of the problem is the law is ambiguous in places and some businesses are misinformed, said Adinata, who specializes in helping companies comply with state and federal immigration and employment laws.
“Some of my clients don’t even realize that it is being phased in over a couple of years,” she said of the E-Verify requirement. “All they know about the law is that it went into effect on July 1 and they are like ‘Shoot, we better get into compliance right now. We better be using it.’”
Jason Berry, the farm manager at Blueberry Farms of Georgia in Baxley, said his business isn’t using E-Verify now and doesn’t plan to for some time. He said his farm has 15 permanent employees but hires as many as many as 200 seasonal workers to pick berries in the spring and summer. Because those seasonal workers aren’t employed by his farm on Jan. 1 of each year, his farm apparently isn’t required to start using E-Verify until July 1 of 2013 at the soonest.
“We will deal with it when we have to," he said.
Businesses are also asking how Georgia will enforce the E-Verify requirement. Under the state law, employers must submit affidavits confirming they use E-Verify in order to obtain their business licenses. The state Attorney General's office is required to post the affidavit form on its website by Jan. 1.
The law also says the state Audits and Accounts Department shall do annual audits to ensure compliance and that the state Attorney General’s office can investigate violations. But the law also says those audits will be done “subject to funding.” It will be up to the state Legislature to provide that funding in the fiscal year 2013 budget, said Russell Hinton, Georgia’s state auditor.
“It should be noted,” Hinton said in a written response to questions from the AJC, “that as a result of the significant budget cuts we have taken over the previous few years, our department does not have the resources to perform these audits without receiving funding, for such purpose, from the Legislature.”
Some observers also see the possibility the law could be abused. For example, people could attempt to get around it by laying people off just before Jan. 1 to become exempt from having to use E-Verify. Ramsey said he will be watching for that.
“If that becomes an issue,” he said, “we are going to definitely take a look at it going forward.”
Under Georgia’s new immigration enforcement law, businesses with 500 or more employees must start using E-Verify by Jan. 1. Employers with 100 or more workers but fewer than 500 must start using it by July 1. For companies with between 11 and 99 employees, the requirement kicks in on July 1, 2013. Businesses with 10 or fewer are exempt.
E-Verify is a free federal online program employers use to confirm whether their newly hired employees are eligible to work legally in the United States. To learn more: www.uscis.gov/E-Verify
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