June 1, 2011
By T. Mills Fleming, published on June 1, 2011, in Business in Savannah.
When Georgia’s Governor Nathan Deal signed House Bill 87 into law earlier this month, he helped shape the ongoing national debate about immigration reform and affected the way Georgia employers can be prosecuted for knowingly hiring undocumented residents.
The new legislation officially takes effect on July 1 at which time Georgia will become the third state in the U.S. to pass its own immigration reform measures. Although immigration enforcement is typically the responsibility of federal authorities, many states argue that the federal government has not done enough to secure our nation’s borders and to protect America from the financial burden of a seemingly endless sea of illegal immigration. Alabama and South Carolina are considering similar immigration bills that could pass later this year.
The Pew Hispanic Center estimates there are currently 425,000 illegal immigrants in Georgia, the seventh largest population of such aliens of any state. Supporters of Georgia’s new legislation blame illegal immigrants for forcing Peach State taxpayers and hospitals to bear the enormous cost of medical care for undocumented residents — especially since the federal government stopped reimbursing hospitals for such care several years ago. Opponents argue that the bill could encourage racial profiling, discrimination and boycotts of Georgia’s lucrative tourism industry.
In the end, Georgia legislators created and passed a law that is not quite as draconian as the Arizona legislation, which has proved controversial and subjected the state to numerous boycotts and legal challenges. For the most part, Georgia has been spared from these challenges although certain trade organizations have filed lawsuits alleging the new law is unconstitutional.
Here are the nuts-and-bolts facts: The new measure allows local and state law enforcement officers to inquire about immigration status when questioning suspects in certain criminal investigations and authorizes police officers to ask for immigration papers when making routine traffic stops or minor arrests. The law also criminalizes the transport of undocumented aliens, imposing prison sentences of up to one year and fines of up to $1,000 for individuals who knowingly transport undocumented immigrants. It also asserts that workers found guilty of using false identification to secure jobs could be sentenced to up to 15 years in prison and fined up to $250,000.
Perhaps most significantly for local employers, the new Georgia law requires private employers to use the U.S. Department of Homeland Security’s electronic employment-verification system, known as E-Verify. An Internet-based system that allows an employer to determine the eligibility of an employee to work in the United States by using information reported on an employee’s Form I-9, E-Verify has been largely voluntary and limited to new hires in the past.
Ultimately, the Peach State’s new immigration reform legislation also creates stricter requirements for employers regarding documentation of employees and creates a new level of prosecution for companies in violation of immigration laws. In the past, a company that violated immigration laws would have been subject to federal law enforcement only. As of July 1, violators can be tried and prosecuted on the state level as well as in federal court.
Will Georgia’s immigration reform law be pre-empted by federal law? Will House Bill 87 be enforceable in state, federal and appellate courts?
Only time will tell whether the Peach State’s new law will be deemed constitutional. In the meantime, employers should keep a close eye on the changing laws surrounding immigration reform and, if necessary, consult with a legal expert to avoid inadvertent violations of the new law and to ensure total compliance with the latest legislation.
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T. Mills Fleming is a partner and attorney at HunterMaclean in Savannah who specializes in immigration law and health care law. He can be reached at 912.236.0261 or mfleming@huntermaclean.com
