United States: Do You Have An Employee Working In Georgia? If So, New E-Verify Requirements Should Be On Your Mind

Last Updated: February 20 2012
Article by Katie Nokes Minervino

Georgia's comprehensive immigration law requires that private employers enroll in E-Verify as a condition to obtaining or renewing a broad range of business licenses and other documentation required to operate a business or engage in a professional service.

While some provisions of the Georgia law took effect on July 1st, the E-Verify requirements are being phased in, with staggered E-Verify compliance dates based on the size of an employer. The initial phase-in for private employers started in the new year, with businesses employing more than 500 employees required to use E-Verify for new hires as of January 1, 2012. Businesses with less than 500 but more than 100 employees must start using E-Verify by July 1, 2012, and businesses with less than 99 but more than 11 workers must use the program by July 1, 2013. Businesses with 10 or less employees are exempt.

All employers must look closely at whether they have any employees performing services in Georgia that trigger a license requirement because if so, they may be caught in the cross-hairs of Georgia's immigration enforcement efforts.

Counting your employees for purposes of compliance deadlines

To determine the number of its employees for E-Verify purposes under this law, a business must count its total number of employees working at least 35 hours a week as of January 1st of the year the E-Verify mandates for that employer kick in. The definition of "employee" in the Georgia law cross-references the Georgia tax code, and as it is currently written, does not specify that an employer need only count employees on a Georgia payroll. The law further contains no language limiting the employer's required use of E-Verify to new hires within the state of Georgia, leaving the door open for an interpretation of the law with a far-reaching scope outside of the boundaries of Georgia for multi-state employers.

If an employer exclusively employs workers on a Georgia payroll, the analysis is simple and the employer should look to its number of full-time employees paid under its federal employer identification number to determine when the E-Verify requirement applies.

But my employee only works in Georgia - I'm not a Georgia-based business

If an employer has payroll employees in multiple states, including Georgia, the situation is a bit stickier. Such employers should determine, first, whether all these employers are connected to the same federal employer identification number (FEIN). If the employees are distributed among multiple FEINs (for example, in the case of a parent and subsidiary) and the total number on each FEIN is less than 500, the employer's E-Verify requirements will be deferred in Georgia until at least July 2012.

If the employees are all paid under the same FEIN and number 500 or more, the recommended approach is for an employer to enroll in E-Verify for its Georgia hiring sites on or as soon after January 1st as possible, thus placing the employer in the strongest position to obtain the wide range of business and professional licensure in Georgia for which proof of E-Verify is required.

I'm not prepared to potentially "jump the gun" on an otherwise voluntary program.

A company applying to obtain or renew its Georgia business license or an employee obtaining a professional license in Georgia must present an affidavit attesting employer compliance with the E-Verify requirements of the Georgia immigration law. While Georgia has yet to release rules or provide any clarification on how employees should be counted under this law, the Georgia Department of Law released affidavits for employers to present when applying for licensure: one for claiming less than 11 employees, and thus exemption from the E-Verify requirements, and another for employers with 500 or more employees. The affidavit for employers with more than 500 employers (valid from January 1, 2012 to June 30, 2012), like the immigration law itself, does not specify that the total number of employees is restricted to Georgia. The affidavit also asks for an employer's E-Verify identification number and the date that number was issued.

Employers not already in E-Verify with 500+ employees and a limited Georgia presence may be justifiably on the fence about whether they want to enroll in E-Verify under the earliest possible deadline. These employers should consider the cost to working out the wrinkles in a license renewal process for a professional who needs a Georgia license and is unable to provide the required compliance affidavit.

For private employers without federal contracts, E-Verify use is limited to new hires. If an employer hires no (or a minimal number of) employees in Georgia in 2012, actual use of the program will be minimal and the burden relatively low compared to the cost if Georgia takes a hard line issuing licenses and later releases rules specifying that employers must consider all US employees for E-Verify compliance and deadlines.

Further, employers have a range of options in using and administering E-Verify within their company and can obtain the E-Verify Identification Number required as a condition to obtaining licensure without triggering E-Verify obligations for any hiring sites outside of Georgia.

Employers can also choose to administer E-Verify use for Georgia hires at a location outside of Georgia, for example, an out-of-state corporate headquarters.

The Georgia E-Verify law exemplifies the challenges that state-specific E-Verify requirements impose on employers, requiring additional compliance obligations for private employers while lacking clarity on practical aspects of the law.

This alert was also published as a guest blog post on the E-Verify & I-9 News blog.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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