gma and accg joint training on georgia’s illegal ... and accg presentation sept 2011...gma and...

GMA and ACCG Joint Training on Georgia’s Illegal Immigration Reform and Enforcement Act of 2011:Verification, Reporting and Enforcement

P t d b Presented by J. Larry Stine &

Raymond Perez IIWimberly, Lawson, Steckel, Schneider & Stine, P.C.

3400 Peachtree Road, Suite 400,Atlanta, Georgia 30326

404-365-0900September 19, 2011

GMA and ACCG Joint Training on Georgia’s Illegal GMA and ACCG Joint Training on Georgia s Illegal Immigration Reform and Enforcement Act of 2011:

Verification, Reporting and Enforcement, p g

• Form I-9 and E-Verify OverviewForm I 9 and E Verify Overview

• E-Verify Public Contract Requirements

• E-Verify Requirements for Private Employers

C l li ibili ifi i Current Employment Eligibility Verification Requirements for Public Employers in Georgia

• Completion of the Employment Eligibility V ifi i F I 9 ( i d b I i i Verification Form I-9 (required by Immigration Reform and Control Act of 1986)

• Must register and participate in Federal E-Verify Program-required by the Georgia Security and Immigration Compliance Act of 2006 (GSICA)Immigration Compliance Act of 2006 (GSICA)


C l i F I 9Completing Form I-9

Procedures

Current Employment Eligibility Verification Requirements for Public Employers in Georgiaq p y g

Current Form I-9 Employment Eligibility Verificationcan be found at:

http://www.uscis.gov/files/form/i-9.pdfhttp://www.uscis.gov/files/form/i 9.pdf

S ti 1 E l R ibilitSection 1‐Employee Responsibility

P /T l t S tiPreparer/Translator Section

S ti 2 E l R ibilitSection 2‐Employer Responsibility

S ti 3 E l R ibilitSection 3‐Employer Responsibility

R t ti f F I 9Retention of Form I‐9

• Forms I-9 must be stored for 3 years after the date you hire an employee

Or

• One year after the date you or the employee terminates employment, whichever is later

C ti f F I 9Correction of Form I‐9

• No White-Out

• I iti l d d t ti• Initial and date corrections

• Re-Accomplish Using New Form I-9 when necessary

Handbook for EmployersHandbook for EmployersInstructions for Completing Form I-9

at http://www.uscis.gov/files/form/m-274.pdfp g p


Federal E-Verify Program

• All Public Employers required to verify employment eligibility of all newly hired employees with E-Verify

• Must post E-Verify ID number and date of authorization on website

E-Verify and DOJ-OSC Posters


When to Verify a New Employee

C li ibili ifi i i Current Eligibility Verification Requirements for Local Governments


Common E-Verify Usage Issues

C li ibili ifi i i Current Eligibility Verification Requirements for Local Governments

E‐VERIFY PROGRAM 22August 6,

2008


2008

E-Verify: How it Works Initial verification will return one of three results within seconds:

Employment Authorized

h l h d k The employee is authorized to work

SSA Tentative Non-Confirmation

There is an information mismatch with SSA There is an information mismatch with SSA

DHS Verification in Process

DHS will usually respond within 24 hours with either an y pEmployment Authorized or DHS Tentative Non-Confirmation


2008

E-Verify: Case Resolution If Employment Authorized, the employer records the system-

generated verification number on the Form I-9 or can print out the E-Verify Confirmation Sheet and attach to the Form I-9. y

If Tentative Nonconfirmation, the employee can contest the finding and then: Social Security Number mismatches are resolved with SSA Social Security Number mismatches are resolved with SSA Non-citizen status mismatches are resolved with DHS

If the employee chooses not to contest, it is considered a Final p yNonconfirmation and the employer may terminate the employee and resolve the case.


2008

Tentative Non-Confirmation (TNC)

Inform the employee and print and review the TNC notice with the employee.p y

The employee chooses to “contest” or “not contest” the TNC. Refer the employee to the appropriate agency if the TNC is

t t dcontested. The employee has 8 Federal Government workdays from the date

of referral to visit or call the appropriate agency to resolve the discrepancy.

TNC Case Resolution Employee continues to work while the case is being resolved.

Once the employee resolves the discrepancy in his or her records, they p y p y yshould inform the employer.

With both a SSA TNC and a DHS TNC, a response is electronically t t th l th h th t Th l h ld h k sent to the employer through the system. The employer should check

E-Verify periodically for the response.

TNC Case Resolution (Continued)

The employer will receive one of three results: Employment Authorized Employment Authorized

Final Nonconfirmation

Review and Update Employee Data then Resubmit p p y

The employer then resolves the case in E-Verify.


2008

Photo Screening Tool The E‐Verify photo tool enables employers to match the photo

on an employee’s Employment Authorization Document (EAD), P R id C d (“ d”) d U S P Permanent Resident Card (“green card”) and U.S. Passport or Passport Card to the photo that USCIS has on file for that employee.


2008

Other Requirements of E-Verify:

• Employee’s social security number must be listed in Section 1 of the Form I-9

• If employee chooses to present a List B document, it must contain a photographp g p

Other Requirements of E-Verify:

h f l h • Must maintain photocopy of Employment Authorization Document (EAD), Permanent Resident Card (“green card”) or U.S. Passport or Passport Card if presented by employee on p p p y p yForm I-9

• Must maintain E-Verify Confirmation Sheet with employee’s Must maintain E-Verify Confirmation Sheet with employee s Form I-9

E-Verify Statistics

Over 256 000 employers are enrolled in E-Verify which Over 256,000 employers are enrolled in E Verify, which represents over 870,000 hiring sites. This has resulted in:

• M th 8 70 illi t d i FY 2009• More than 8.70 million cases created in FY 2009

• More than 15.00 million cases created in FY 2010

• More than 7.50 million cases created to date in FY 2011

http://www.uscis.gov



E‐Verify Public Contract Requirements under GSICA:

• Applies to Public Employers, Contractors, Subcontractors or Sub‐Subcontractors

• Relates to Contracts for the Physical Performance of Services in Georgia



Definition of Contract?Definition of Contract?

Physical Performance of Services=

Public Works



House Bill 87 Amendments:

• Public Employer must have more than one employee to be covered

• Services must take place in Georgia

• Additional guidance on required Affidavits



Responsibility of Public Employer

• Bid and Contract Requirements

• Monitoring and Recordkeeping

• Contractor and Subcontractor Affidavits



Affidavit Requirements:

• Must state that contractor is using E‐Verify;

• Must contain user ID number and date of • Must contain user ID number and date of authorization;

M h ill i • Must guarantee that contractor will continue to use E‐Verify throughout the contract period;



Affidavit Requirements:

• Guarantee only to contract with subcontractors who also present an E‐Verify affidavit;

• Must be signed and notarized.



ff d d f d d dAffidavits posted on Departments of Audits and Accounts and Georgia Department of Labor websites



Contractor, Subcontractor or Sub-Subcontractor with no employees:employees:

• No Affidavit Requirement

• Must provide copy of state issued drivers license or ID (only from states that verify immigration status and approved by AG’s office)



Contractor, Subcontractor or Sub-Subcontractor with no employees:employees:

• Must be provided to all parties like Affidavit

• Must comply with Affidavit requirements if necessary to hire employees to complete contract



Contractor Affidavit Reporting Requirements:

• Must submit all Affidavits or other records to public employer within 5 business daysp p y y



Subcontractor Affidavit Reporting Requirements:

• Must submit at time of contract

• Must submit any Sub-Subcontractor affidavit within 5 business days



Public Employer Reporting Requirements:

• Must submit Compliance Report to State Auditor by December 31 of each yeary y

• Must certify compliance and contain E-Verify Number and date of authorization of entity and Number and date of authorization of entity and contractors



House Bill 87 also introduced new penalties for failure to comply with contract provisions under GSICA



Public Employer Penalties:

• If any violations found, given 30 Day Period to correct deficiencies



F l E l f L f Failure to correct = Exclusion from List of Qualified Local Governments

Penalty in place until all deficiencies corrected




• Appeal Rights to Office of State Administrative Hearingsg

• Penalties and time to correct tolled until Final RulingFinal Ruling




• Actions by County Constitutional Officercannot form basis of any violationy

GMA d ACCG J i t T i i G i ’ Ill l GMA and ACCG Joint Training on Georgia’s Illegal Immigration Reform and Enforcement Act of 2011:

Verification Reporting and EnforcementVerification, Reporting and Enforcement

Penalty for any person who knowingly makes a false statement Affid ion an Affidavit:

• Guilty of obstruction of public administrationy

• Can be fined up to $1,000.00, imprisoned for at least one year but not more than five years or bothbut not more than five years, or both



• Any Contractor or Subcontractor convicted for false ill l b hibi d f biddi i statements will also be prohibited from bidding on or entering

into any public contract for 12 months following such conviction

• Such persons or entities will also be listed on www open georgia govwww.open.georgia.gov



No person can be held civilly or criminally liable for unknowingly No person can be held civilly or criminally liable for unknowingly accepting a bid from or contracting with a contractor,

subcontractor, or sub-subcontractor who is violation the law

Presumption that Public Employer, Contractor or Subcontractor relies on Affidavit in Good Faith



• Employers and state agencies cannot be subject to lawsuit or otherwise held liable for complying with law



• Georgia Department of Labor required to conduct at least 100 random audits to ensure compliance subject to funding



E-Verify Requirements for Private Employers



House Bill 87 phases in new E-Verify Mandate for Private E l GEmployers in Georgia:• January 1, 2012 for employers with more than 500

employees;p y• July 1, 2012 for employers with 100 or more

employees;• July 1 2013 for employers with more than 10 July 1, 2013 for employers with more than 10

employees.



Wh h l d d • Which employees are counted to determine coverage?

• Which employees are not counted to determine coverage?p y g

• When does determination need to be made?



What is the responsibility for county and municipal corporations before they issue or renew a business license occupational tax before they issue or renew a business license, occupational tax certificate, or other document required to operate a business:

• P t id id th t th E V if • Person must provide evidence that they are on E-Verify or demonstrate they are not covered by the law

• State AG’s Office will come out with Affidavit that satisfies this requirement by January 1, 2012



Other requirements for county and municipal corporations:

• Reporting Requirement to Department of Audits and Accounts

• Begins December 31, 2012 and must be done annually

• Must identify each license or certificate issued during past 12 months



Restriction on Private Employers:• Once employer has submitted Affidavit with E-Verify ID Once employer has submitted Affidavit with E Verify ID

Number, can only renew business license with same number

unless

• Submits sworn document explaining reason for new or different E-Verify ID number



Penalties for failing to comply with E-Verify Mandate:

• Employer or government official can be found guilty of Misdemeanor for providing false informationMisdemeanor for providing false information



Penalties for submitting false or misleading Affidavit:

• Guilty of obstruction of public administration

• Can be fined up to $1,000.00, imprisoned for at least one year but not more than five years, or both



Potential Defenses:

• Acted in Good Faith

• Made reasonable attempt to comply



Authority of Georgia’s AG Office:

• Can investigate requirements and bring criminal and civil actions

• Must provide employer 30 days to comply with mandate for good faith violations

GMA and ACCG Joint Training on Georgia’s Illegal Immigration Reform and Enforcement Act of 2011:


QUESTIONS?

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