State Immigration Laws

The Employment Verification Law (C.R.S. § 8-2-122) requires both public and private employers in Colorado to complete the Affirmation of Legal Work Status form within 20 calendar days after hiring an employee.  The revised form, with a date of 09/01/14, must be used for new hires after October 1, 2014.   The employer, not the employee, is responsible for completing and maintaining the form.  The form must be retained for the duration of the employee’s employment.

The Affirmation of Legal Work Status form is separate from employers’ requirement under the Immigration Reform and Control Act (IRCA) to complete the Employment Eligibility Verification form — the Form I-9.  The latter form must be completed within three business days of hire.   The retention requirements are also different in that the Form I-9 must be maintained for three years after date of hire or one year after termination, whichever is later.

To learn more about the Colorado law, click here.

Private employers in Georgia with 11 – 99 employees must register with the federal electronic employment eligibility verification program — known as E-Verify — by July 1, 2013.

Enrollment and use of E-Verify for new hires is tied to a businesses license, occupational tax certificate or other document required to operate a business in Georgia.   To see the affidavit of compliance which private employers must use, click here.   E-Verify is the law in Georgia courtesy of HB 87 and most recently SB 160.  These bills modified Code Section 36-60-6 of the Official Code of Georgia and laid out a rolling registration requirement for Georgia businesses to enroll in E-Verify starting January 1, 2012 (employers with 500+ employees), July 1, 2012 (employers with 100 – 499 employees) and now the upcoming deadline of July 1st.  Note that small business with 10 or less employees are exempt from the E-Verify mandate.

This means that before a county or municipality issues a business license, occupational tax certificate or other document required to operate a business in Georgia, the business must provide an affidavit (see above link) attesting to the fact that they use the E-Verify program.  Subsequent renewals will require that the business provide their E-Verify user number (no affidavit).

To learn more about E-Verify click here.  Also, in order to use E-Verify, an employer must complete the Employment Eligibility Verification form (Form I-9) for new hires.  The most current version of the Form I-9 can be found by clicking here.

Soon Illinois will be the fourth state joining New Mexico, Utah and Washington allowing undocumented immigrants to apply for and receive a driver’s license or permit.   The legislation (SB 957) will allow the Secretary of State to issue temporary visitor’s driver’s licenses to applicants who have resided in the State for more than a year, are ineligible to obtain a social security number, and who are unable to present documentation issued by the U.S. Citizenship and Immigration Services authorizing the person’s presence in this country.

For purposes of the Employment Eligibility Verification form (form I-9) this poses an interesting dilemma because a driver’s license combined with a social security card is typical combination of Section 2 documents presented for purposes of establishing one’s identity and work authorization.  Assuming a good quality, but fraudulent, social security card one could easily state that they are a US Citizen or lawful permanent resident in Section 1 and present at least one-half of a legitimate set of documents to an employer. Most people assume that if you have a valid government issued document then you must be doing something right.  So, presumably to account for such (or maybe due to sheer luck) the drafters state in the legislation that the license cannot be accepted for proof of the holder’s identity.  Therefore, very important, these licenses will contain a notice on its face, in CAPITAL LETTERS, stating that the license may not be accepted as proof of identity.  Which means it cannot be accepted as a Section 2, List B document for purposes of the form I-9.

Ever wonder who else is participating in E-Verify, the electronic employment eligibility program?  Now you can find out.  U.S. Citizenship and Immigration Services (USCIS) provides access to their participating employer database through the E-Verify Employers Search Tool.  While there are some limitations, the search tool covers currently enrolled employers and federal contractors in E-Verify through December 15, 2012.

As a reminder, participation in E-Verify is voluntary unless you are a federal contractor with the FAR clause or are in a state which mandates participation in E-Verify depending upon whether you are a public contractor or private employer.  See prior posts regarding state immigration laws and E-Verify mandates.

Potential beneficiaries of USCIS E-Verify Employers Search Tool include F-1 students in  science, technology, engineering and math (STEM) programs who need to work for employers enrolled in E-Verify if they want to benefit from the additional 17-month OPT STEM work authorization period.

Depending on where you are in the United States — stay warm!

Effective January 1, 2013 certain states have E-Verify triggers.  Ring in the new year by enrolling in E-Verify, the electronic employment eligibility program, in the following states:

  • North Carolina — Employers that employ 100 or more but less than 500 employees must use E-Verify. (HB 36)
  • Tennessee — Employers with between six and 199 employees must use E-Verify or maintain certain documents for employees.  In addition, employers with independent contractors must maintain certain documents for those individuals. (SB 1669/HB1378)

In a slight variation to the above which applies to private employers, Pennsylvania will require all contractors and subcontractors on public works projects with the State of Pennsylvania to use E-Verify for all newly hired employees, effective January 1, 2013. (Senate Bill 637)

Failure to enroll in E-Verify at the state level can lead to warning letters and escalate to civil penalties, as well as debarment in instances where public works contracts are involved.

As you may have heard by now, the Obama Administration decided to act on the issue of children brought to the United States who have gone on to have otherwise productive lives only to realize as they got older that they are unlawfully present in the United States.  The U.S. Congress wasn’t acting on the DREAM Act, so the Administration did.  The Administration announced that it would grant Deferred Action status to those brought to the United States prior to the age of 16, who are presently no older than 30, and currently in school, have graduated or obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces.  Upon approval, these young people will receive a reprieve from deportation for two years and be eligible for work authorization.  That’s the gist of the program. 

Why does this matter to you as an employer?  Namely, if such an individual comes to you and says they need a letter to prove they have continuously resided in the United States since 2007 to present, this simple request opens up a can of worms.  Now you potentially know that the individual is not authorized to work and until they receive a work permit through the program, the general rule would be that they must be terminated.  Also, some are wondering out loud whether an employer who decides to write a letter on behalf of a Deferred Action applicant will expose themselves to an investigation by Immigration and Customs Enforcement (ICE) regarding their form I-9 practices and compliance.  Bottom line — if you receive an inquiry from an employee, or employees, regarding a letter of support for their application, speak with an immigration attorney knowledgeable with form I-9 issues before doing so. 

Additionally, for those eligible for Deferred Action, some states are being a bit mean-spirited and saying that even though the federal government is going to temporarily legalize their status, they are not going to issue them state benefits such as driver’s licenses or identification documents.  To date, those states are:

  • On August 15th, Arizona Governor Jan Brewer issued an Executive Order (2012-06) entitled, “Re-Affirming Intent of Arizona Law in Response to the Federal Government’s Deferred Action Program.”  Essentially Governor Brewer is stating that Arizona will not issue public benefits to those who receive work authorization and a work permit under the Deferred Action program, such as a driver’s license or identification card.   
  • On August 16th, Texas Governor Rick Perry sent a letter to Texas Attorney General Greg Abbott and Texas state agencies, “to ensure that all Texas agencies understand that Secretary Napolitano’s guidelines confer absolutely no legal status whatsoever to any alien who qualifies for the federal ‘deferred action’ designation.”  Perry concluded, “these guidelines do not change our obligations under federal and Texas law to determine a person’s eligibility for state and local public benefit. Federal law prohibits conferring such benefits to most unlawfully present aliens, absent a state law to the contrary.”
  • On August 17th, Nebraska Governor Dave Heineman announced that “President Obama’s deferred action program to issue employment authorization documents to illegal immigrants does not make them legal citizens.” Heineman concluded, “Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.”

Pennsylvania is the next state to mandate the use of E-Verify for certain public works contractors working with the state.  The Public Works Employment Verification Act (Senate Bill 637) was approved this month by Governor Corbett.  Effective January 1, 2013, a contractor or subcontractor that provides work under a contract involving a public work will need to enroll in E-Verify and use the program for all new hires.  

Violations of the Public Works Employment Verification Act would start with a warning letter and escalate to debarment from public works contracts for 30 to 180 days or permanently.

Public Works are defined as, “construction, reconstruction, demolition, alteration and/or repair work other than maintenance work, done under contract and paid for in whole or in part out of the funds of a public body where the estimated cost of the total project is in excess of twenty-five thousand dollars ($25,000), but shall not include work performed under a rehabilitation or manpower training program.”

I thought it would be helpful to spend some time recapping which states mandate E-Verify for private employers.  I stress “private” because states also mandate the use of E-Verify by public employers, in other words, employers who have a contract with the state, but that’s a topic for another day.  One interesting point in the immigration frenzy is that the number of immigration related bills introduced in state legislatures has fallen in 2012 from the year before, according to the National Conference of State Legislatures (NCSL).  Notwithstanding this fall in the number of immigration bills, employment related measures continue to be a top priority for states. 

According to NCSL, 119 “bills were introduced in 35 state legislatures: Alabama, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Iowa, Illinois, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington and West Virginia.  Some of these bills would penalize businesses that employ unauthorized immigrants or would require the use of an electronic employment verification system (such as E-verify).  Other bills would limit immigrants’ eligibility for unemployment benefits, grant bargaining rights to immigrant farm laborers or create a guest worker program.”

Presently, if you operate in one of the below listed states, you should be using E-Verify for new hires, preparing to do so in the near future or using a state prescribed employment authorization system.  For instance, Utah allows employers to use either E-Verify or the Social Security Number Verification System (SSNVS).

  • Alabama
  • Arizona
  • Colorado — state has a quirky affidavit requirement instead of mandating E-Verify
  • Georgia — because my firm’s main office is located in Atlanta, Georgia, I provide a link to the E-Verify requirements
  • Indiana
  • Louisiana
  • Mississippi
  • North Carolina
  • South Carolina
  • Tennessee
  • Utah

Note that this is not an exhaustive list as some local jurisdictions have instituted E-Verify mandates as well, and likely the list of states will increase. The moral of the story is, if you operate in a state which has an E-Verify mandate you need to know what is required of your company.  LawLogix has a great map breaking down the state E-Verify requirements in case you are interested.  If you are uncertain, speak to immigration counsel and also feel free to send me an email.

It’s almost time Georgia employers.  For what you ask?  To enroll in E-Verify of course.  You can thank Governor Deal for signing House Bill 87, also known as the Illegal Immigration Reform and Enforcement Act of 2011, which was passed during the 2011 session of the Georgia General Assembly and was signed by the Governor on May 13, 2011.  The first wave of private employers required to enroll in E-Verify in Georgia occurred on January 1, 2012, when employers with 500+ employees had to enroll.   Compliance with the Georgia law is tied to a company’s ability to apply for, or renew, their business license, occupational tax certificate or any other document required to operate a business in the Peach State.  The Georgia Attorney General’s office has posted online the affidavit employers will need to sign confirming their participation in E-Verify pursuant to the deadlines spelled out in section 36-60-6(d) of the Official Code of Georgia Annotated.

Private employers in Georgia with 100 to 499 employees must enroll in E-Verify, the electronic employment eligibility verification program run by U.S. Citizenship and Immigration Services (USCIS), by July 1st.  Enrollment is free, takes less than one hour (conservative estimate) and requires those who will be using the program to take and pass a tutorial about how to use it.  The enrollment process is described on the USCIS website, and employers will be required to sign a Memorandum of Understanding with the Department of Homeland Security (USCIS is a part of the Department of Homeland Security).

 Quick Tips:
  • Private employers in Georgia must enroll in E-Verify by July 1st, 2012 if you have 100 – 499 employees.
  • E-Verify is used in conjunction with completion of the Employment Eligibility Verification form (Form I-9) — so don’t stop completing the Form I-9 as you will take information from that form and enter it into E-Verify.
  • Use E-Verify only for new hires.
  • Because E-Verify requires that you photocopy certain documents presented by new hires, consider a policy where you photocopy the document(s) presented by new hires effective upon your enrollment in E-Verify.
  • Consider an internal audit using outside immigration counsel of your Forms I-9 as well as your policies and procedures with respect to your compliance with federal and state immigration laws.  I am happy to have that discussion with you.

 A federal district court in Missouri issued a preliminary injunction blocking the enforcement of a voter-approved law that would have required businesses in Springfield, MO to use E-Verify to confirm the work authorization of all employees. The law requires the city’s Finance Department to enforce its provisions by penalizing businesses for noncompliance. The city government has agreed to the injunction, and City Manager Greg Burris has said that the city has, “known all along there are portions of the ordinance that are both un-enforceable and illegal.”   The push for mandatory E-Verify began with the Ozarks Minutemen, who initially pushed a petition through the Springfield City Council demanding that all private employers use E-Verify to check individuals’ work authorization.  

Who knew that the birthplace of Route 66 and other famous historical events is now also at the center of the immigration debate with voters seeking mandatory E-Verify?!  But, employers aren’t entirely out of the woods in Missouri.  There is a state law mandating use of E-Verify if you are a public employer or are a business with a state contract or grant in excess of $5,000 or any business receiving state-administered or subsidized tax credit, tax abatement or loan from the state to participate in E-Verify or other federal work authorization program.