For several years, certain employers that contract with state agencies in Georgia have been required to verify the eligibility of their new hires to work in the United States by using E-Verify, a federally administered online system for confirming the identity and employment eligibility of individuals. A newly enacted Georgia statute, signed by Governor Nathan Deal on May 13, 2011, will soon expand the E-Verify requirement to all Georgia employers with more than ten employees.

The New Legislation

The Georgia Illegal Immigration Reform and Enforcement Act of 2011 is a sweeping piece of legislation modeled after a controversial set of immigration-related laws in Arizona, parts of which are now being challenged in a federal lawsuit. The portions of the new Georgia law that directly affect employers, however, are among the least controversial aspects of this legislation and are likely to go into effect without a legal challenge.

The new Georgia immigration law requires all Georgia employers with more than ten employees who work at least thirty-five hours per week to enroll in and use E-Verify to check the eligibility of all new hires to work in the United States. This requirement will be phased in gradually, depending on the size of the employer. The E-Verify requirement will become effective on January 1, 2012 for employers with 500 or more employees. Employers with 100 to 499 employees will become subject to the requirement on July 1, 2012, and employers with ten to ninety-nine employees will be covered by the law on January 1, 2013.

The new law prohibits all Georgia counties and municipalities from issuing or renewing a business license, occupational tax certificate, or other document required to operate a business unless the business provides evidence that it is using E-Verify as required by the new law or that the E-Verify provisions of the new law do not apply to the business. This evidence will take the form of a standardized affidavit provided by the Georgia Attorney General's office. Whether an employer is exempt from the new Georgia law because it has ten or fewer employees will be determined on the basis of the number of employees the employer has on January 1 of the year during which the affidavit is submitted. Falsification of the affidavit constitutes a misdemeanor.

Practical Implications

Employers in Georgia that have more than ten employees who work at least thirty-five hours per week should prepare to enroll in and use the E-Verify system if they are not already participating in that system. E-Verify compares information provided by a new hire on Form I-9 with information in the federal government's databases to verify the individual's identity and eligibility to work in the United States. Although E-Verify is a free service, participating employers will incur costs in using it as a result of the time it takes the employer's personnel to be trained in the use of E-Verify, to enter data into the E-Verify system, and to respond to E-Verify determinations that information supplied on a new hire's Form I-9 does not match government records.