Immigration Alert: New State Laws Mandating Use of E-Verify Take Effect in 2012

On January 1, 2012, new laws took effect in five (5) states, requiring employers to register for and use the otherwise voluntary federal E-Verify system. Many of these laws were passed following the U.S. Supreme Court’s May 2011 decision upholding Arizona’s right to mandate the use of E-Verify, an online employment authorization verification tool administered by the U.S. Department of Homeland Security in cooperation with the Social Security Administration.

• Alabama (HB56): Effective January 1, 2012, all employers who wish to contract with the state, or with any city, county, or public authority within Alabama, must be registered with E-Verify, and must affirm that all subcontractors with which they do business will also participate in E-Verify.
  
  Beginning April 1, 2012, all employers operating within Alabama will be required to register for and use E-Verify.


• Georgia (HB87): Effective January 1, 2012, all employers with 500 or more employees must register for and use E-Verify. Employers with 100 to 499 employees must be registered with E-Verify by July 1, 2012; and employers with 11 to 99 employees must register beginning January 1, 2013. Employers with 10 or fewer employees are exempted from the law.


• Louisiana (HB342): Effective January 1, 2012, any employer contracting with state or local governments within Louisiana must register for and use E-Verify through the term of the contract. In addition, state contractors must affirm that subcontractors hired as a result of the state or local contract also participate in E-Verify.
  
  In addition, as of this past August 2011, all employers are required to either retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process or participate in E-Verify. (While the Form I-9 process is mandatory under federal law, retention of photocopies is generally optional.)


• South Carolina (SB20): Effective January 1, 2012, all employers operating within the state will be required to register for and use E-Verify.


• Tennessee (HB1378): Effective January 1, 2012, on a rolling basis, employers must either retain photocopies of identification and work authorization documents as part of the federally-mandated Form I-9 process, or participate in E-Verify. Employers with 500 or more employees must comply beginning January 1, 2012. Employers with 200 to 499 employees must comply beginning July 1, 2012; and employers with 6 to 199 employees must comply beginning January 1, 2013. Employers with 5 or fewer employees are exempted from the law.

Also effective this year, a new law in North Carolina will require all employers with 500 or more employees to register for and use E-Verify beginning October 1, 2012.

On the other side of the spectrum, California passed legislation in October 2011 that preempts county, municipal, and other local government laws that mandate the use of E-Verify. Participation in E-Verify is therefore voluntary in California according to state law, except to the extent it is mandatory under federal law – i.e., for certain federal contractors.

Seventeen (17) states now have laws related to the mandatory use of E-Verify for some or all employers. Given that cities, counties, and other jurisdictions are also enacting similar measures, it is critical for employers to be mindful of this complex patchwork of laws, and to develop strategies to ensure compliance in all employment matters.

It is additionally important for employers to comply with all federal anti-discrimination laws during the onboarding process. With new state laws increasing the penalties for employers who fail to properly verify the employment authorization of their employees, there is an increased risk that employers may engage in conduct prohibited by federal law, notably the Immigration Reform and Control Act (IRCA), which protects employees from discrimination, including “document abuse,” in the Form I-9 and E-Verify processes. Employers must be aware of IRCA prohibitions against requesting specific types of identification or employment authorization documentation during the onboarding process (e.g., proof of U.S. citizenship), as well as laws requiring equal treatment of anyone who is authorized to work in the United States, regardless of citizenship, immigration status, nationality, name, accent, or appearance. State laws mandating the use of E-Verify do not protect employers from federal discrimination claims under IRCA and other federal laws, or from potential fines or prosecution. General information about federal anti-discrimination laws is available from the U.S. Department of Justice at: http://www.justice.gov/crt/about/osc/htm/employer.php

Please contact your designated Gibney representative or email immigrationalerts@gibney.com for additional details regarding this announcement, or for advice on developing protocols and best practices concerning immigration-related onboarding processes.

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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.