June 29, 2011

HB 87: A section-by-section synopsis/explanation of Georgia’s immigration/employment/public benefits enforcement law

Posted by D.A. King at 7:35 am [Email the author] [Print This Article] [Email This Article]

Below is a section-by-section synopsis/explanation of Georgia’s HB 87 immigration enforcement law

You can read the entire law for yourself HERE

Section 1

Simply cites the title of the Act: the Illegal Immigration Reform and Enforcement Act of 2011. (Note from D.A. - we think the title says a lot)

Section 2

Provides definitions of terms used in the Act such as: “Commissioner means the Commissioner of the Department of Labor. Contractor means a person or entity that enters into a contract for the physical performance of services with a public employer.” Also others including “’Federal work authorization program’ means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify employment eligibility information of newly hired employees, commonly known as E-Verify, or any subsequent replacement program.” It also defines “Public employer and Subcontractor and sub-subcontractor.
(Note: Dont’ get me started on the term “sub-subcontractor”)

Section 3

Alters the existing state law from 2006 (the Georgia Security and Immigration Compliance Act - SB 529) dealing with requirements that public employers (think Atlanta, city of, DeKalb County or Georgia Dept. of Transportation…) and their contractors (think Turner Construction and Zebra Construction and the Cobb County Courthouse project) use the no-cost federal E-Verify system to verify work eligibility of newly hired employees. NOTE: AS OF JULY 2007 ALL PUBLIC EMPLOYERS AND THEIR CONTRACTORS MUST USE E-VERIFY, REGARDLESS OF NUMBER OF EMPLOYEES. HB 87 DID NOT CHANGE THAT REQUIREMENT. Provides for compliance audits and penalties for both entities. Also provides for public internet posting of E-Verify and compliance information.

Repeated Non-compliance on the part of political subdivisions can result in a 10% reduction of state funding. Contractors - of any level - found to be in violation can be prohibited from entering into a public contract for 12 months. (Note: Lobbyists from the Association County Commissioners Georgia (ACCG), the Georgia Municipal Association (GMA) and the Associated General Contractors were successful in creating much of the language of this section. While it is an improvement because it provides for audits, tracking and some penalties, it will be addressed in the future to make it even tougher)

Section 4

Creates a new Georgia crime in existing identity fraud law– “aggravated identity fraud” for use of false ID to obtain employment: “…A person commits the offense of aggravated identity fraud when he or she willfully and fraudulently uses any counterfeit or fictitious identifying information concerning a real, fictitious, or deceased person with intent to use such counterfeit or fictitious identifying information for the purpose of obtaining employment.” (This is a huge deterrent for illegal aliens to attempt to take a job in Georgia. In short, this is a very notable section that will drive black-market labor out of Georgia and deter many illegal aliens from coming).

Section 5

Provides for very stiff penalties for violations of the above Section 4: A violation of Code Section 16-9-121.1 shall be punishable by imprisonment for not less than one nor more than 15 years, a fine not to exceed $250,000.00, or both, and such sentence shall run consecutively to any other sentence which the person has received. (Note: The sound you may hear is illegal aliens talking about stealing a job in nearly any other state besides Georgia)

Section 6

Changes two words in existing law and adds the new code section creating the crime of aggravated identity fraud into existing law that provides for exemptions to clarify Section 4.

*Section 7 (* Federal Judge Thomas Thrash has issued a preliminary injunction on this section thereby delaying implementation)

Creates Georgia crime for transporting and harboring an illegal alien when committing a seperate state or federal crime and defines both offenses. Transporting and harboring an illegal alien is already illegal under federal law.

* Section 8 (* Federal Judge Thomas Thrash has issued a preliminary injunction on this section thereby delaying implementation. Local law enforcement alreay has authority to enforce immigration law)

Allows any Georgia peace officer to verify a suspect’s immigration status when investigating violation of a state or federal crime when the suspect cannot provide proof of legal presence in the United States including a driver’s license, Georgia ID card. Allows officers to take any action authorized by state or federal law: “If during the course of the investigation into such suspect’s identity, a peace officer receives verification that such suspect is an illegal alien, then such peace officer may take any action authorized by state and federal law, including, but not limited to, detaining such suspected illegal alien, securely transporting such suspect to any authorized federal or state detention facility, or notifying the United States Department of Homeland Security or successor agency. Nothing in this Code section shall be construed to hinder or prevent a peace officer or law enforcement agency from arresting or detaining any criminal suspect on other criminal charges.(f) No person who in good faith contacts or has contact with a state or local peace officer or prosecuting attorney or member of the staff of a prosecuting attorney for the purpose of acting as a witness to a crime, to report criminal activity, or to seek assistance as a victim to a crime shall have his or her immigration status investigated based on such contact or based on information arising from such contact.”

A peace officer shall not consider race, color, or national origin in implementing the requirements of this Code section except to the extent permitted by the Constitutions of Georgia and of the United States

Section 9

Clarifies and states inherent authority of state and local law enforcement officials to send, receive and maintain information pertaining to immigration status of any individual and sharing that information with other law enforcement agencies.

Clarifies and states inherent authority of state and local authorities to enter into agreements with the federal government for the purpose of expanding inherent authority to enforce federal immigration laws.

Prohibits any ordinance or law stopping any state or local government from use of federal resources and grants ability of the state to consider incentives to local law enforcement agencies to take advantage of federal programs such as 287(g) and “Secure Communities.”

Restates existing authority of local law enforcement to arrest any illegal alien or any violation of federal immigration law when authorized by federal law.

Section 10

Expands and improves 2006 state law (SB 529) by requiring no fewer than 10 state Department of Public Safety officers to apply for 287 (g) training each year.

The original law only designated that an unstated number of “officers” must be trained without an annual requirement. In 2006, 12 officers were trained under this code section in a one-time event. This section will result in a constant stream of newly trained officers each year.

Section 11

Upon available funding, establishes a grant and incentive program for local governments to use the federal 287(g) or Secure Communities programs. (Note: some other states are trying illegally to outlaw use of these federal enforcement tools).

Section 12 (Note from D.A. King – this is the heart of the law and was by far the most contested and drew the most opposition from the ACLU, the Georgia Chamber of Commerce, the Farm Bureau the Agribusiness lobbyists and the business community in general. The Supreme Court has heard an appeal from the United States Chamber of Commerce and the ACLU et al to nullify a very similar law in Arizona. The law was upheld. This section cannot be struck down by any court. You can read more HERE by any description, this is the key provision of the law)

Requires every private employer with more than 10 full-time employees (35 hours per week or more) to use the no-cost federal E-Verify database to verify work eligibility of newly hired employees. NOTE: AS OF JULY 2007 ALL PUBLIC EMPLOYERS AND THEIR CONTRACTORS MUST USE E-VERIFY, REGARDLESS OF NUMBER OF EMPLOYEES. HB 87 DID NOT CHANGE THAT REQUIREMENT.Monitoring and enforcement of E-Verify rules and regulations and the crime of knowingly hiring an illegal alien remains with the federal government.

The state law requires all applicants for the new issue or renewal of a business license (or occupational tax certificate or any other document required to lawfully conduct business) to swear on an affidavit to the issuing local government they are authorized to use E-Verify, enter the unique federally issued E-Verify “user number” and the date on which authority was issued. This must be done before the county or municipality issues or renews the business license or required document to do conduct business.

If the applicant for the business license does not have the same user number the following year upon renewal application, he must explain the reason on an additional sworn document and can be denied renewal. Penalty for false swearing is a felony and the Attorney General can investigate any violations and bring criminal or civil action.

Implementation is staggered: Businesses with 500 or more employees must comply beginning on January 1, 2012. 100 employees or more beginning on July 1, 2012 and July 1, 2013 for businesses with 100 -11 employees. The number of employees is determined by the number of employees on January 1 on the year the affidavit is submitted.

Any county or municipality issuing or renewing business licenses or required documents must submit a report showing compliance and identify each license issued/renewed in the preceding 12 months to the Department of Audits. The Department of Audits shall annually conduct an audit of at least 20% of the reporting agencies. Note that audits are subject to availability of funding.

Section 13

Defines illegal alien: “the term ‘illegal alien’ means a person who is verified by The federal government to be present in the United States in violation of federal
immigration law.”

Much more importantly, this section also alters 2006 state law the 2006 Georgia Security and Immigration Compliance Act (SB 529) to require that “when any foreign national is confined, for any period, in a county or municipal jail, a reasonable effort shall be made to verify that the prisoner such foreign national has been lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired…upon verification that any person confined in a jail is an illegal alien, such person may be detained, arrested, and transported as authorized by state and federal law. ”

Prior language only required the immigration status check of alien prisoners charged with felonies or DUI or driving without being licensed or with a high misdemeanor. This was designed as a “Plan B” to Section 8 and went untouched by the federal judge who issued the preliminary injunction on sections 7 & 8.

Section 14

Provides additional state funding (10% increase) to county jails that have applied for or obtained 287(g) authority for prisoner housing expenses.

Section 15

Uses official “agency head” definition (see Section 16 to understand this better) and provides penalties for violation by an agency head of the E-Verify requirements for public employers and the use of the federal SAVE system to verify eligibility of applicants for public benefits which were established in the 2006 Georgia Security and Immigration Compliance Act (SB 529): As used in this subsection, the term ‘agency head’ shall have the same meaning as set forth in Code Section 50-36-1. Any public official, agency head, or employee who violates Code Section 13-10-91 or 50-36-1 shall be subject to: A civil fine not to exceed $10,000.00; Restitution to the state or local government, whichever is applicable, of any pecuniary benefit received as a result of such violation; and Where such violation is committed knowingly and intentionally, removal from office or employment.” (Note, this will go a long way in insuring that the 2006 law is actually enforced and obeyed. It will save jobs, services and benefits and millions of budget dollars)

Section 16

Defines official ‘agency head’ as noted above: ” ‘Agency head’ means a director, commissioner, chairperson, mayor, council member, board member, sheriff, or other executive official, whether appointed or elected, responsible for establishing policy for a public employer.”

Section 17

Requires agency heads to collect secure and verifiable ID from applicants for public benefits.

Refines procedure in the 2006 law (SB 529) that requires applicants for public benefits to swear on an affidavit they are eligible for benefits because they are either U.S. citizens or lawfully present and eligible aliens by standardizing the affidavits and posting example of affidavit on the official Website of the Department of Audits. Allows for electronic submission. (Note: this section makes it much more difficult for all illegal alien benefits applicants to scam the system. It goes into effect on January 1, 2012)

Section 18

Provides for meaningful punishment of agency heads who intentional and knowing violation of above (Section 17 OCGA 50-36-1) requirements on administering public benefits: “Be a violation of the code of ethics for government service established in Code Section 45-10-1 and subject such agency head to the penalties provided for in Code Section 45-10-28, including removal from office and a fine not to exceed $10,000.00; and Be a high and aggravated misdemeanor offense where such agency head acts to willfully violate the provisions of this Code section or acts so as to intentionally and deliberately interfere with the implementation of the requirements of this Code section.

The Attorney General shall have the authority to conduct a criminal and civil investigation of an alleged violation of this chapter by an agency or agency head and to bring a prosecution or civil action against an agency or agency head for all cases of violations under this chapter. In the event that an order is entered against an employer, the state shall be awarded attorney’s fees and expenses of litigation incurred in bringing such an action and investigating such violation.” (Note this was badly needed to improve the landmark 2006 law - SB 529)

Section 19

Secure and Verifiable Identity Document Act.
Defines Secure And Verifiable ID documents: “Secure and verifiable document’ means a document issued by a state or federal jurisdiction or recognized by the United States government and that is verifiable by federal or state law enforcement, intelligence, or homeland security agencies official use and excludes consular ID issued by other nations including the Mexican matricula consular ID card issued by that foreign nation to its citizens living in the USA. The FBI has testified to Congress that the Mexican matricula consular ID represents a threat to the United States HERE

Only illegal aliens who cannot obtain valid official US issued ID have a need for these easily obtained and easily forged consular ID cards. D.A. King had more than one - (he was born in the USA and is not Mexican (two shown here) .

Allows state Attorney General to create a defined list of these accepted, verifiable documents by August 1, 2011. Only those documents approved and posted by the Attorney General pursuant to subsection (f) of this Code section shall be considered secure and verifiable documents. Unless required by federal law, on or after January 1, 2012, no agency or political subdivision shall accept, rely upon, or utilize an identification document for any official purpose - such as entering the state Capitol - that requires the presentation of identification unless it is a secure and verifiable document.” (Another note, this a giant pro-enforcement step forward in inhibiting the daily activities and ability of illegal aliens to present photo ID in various official circumstances, especially the illegals from Mexico, the largest segment of the fugitive population living in Georgia. The federal judge did not grant an injunction on this section. It will hit the illegal alien lobby quite hard)

Section 20

Establishes an Immigration Enforcement Review Board of seven appointed members attached to Department of Audits and Accounting.

Duties include: “To review or investigation of any complaint properly filed with the board; To take such remedial action deemed appropriate in response to complaints filed with the board, including holding hearings and considering evidence; To make and adopt rules and regulations. To subpoena relevant documents and witnesses and to place witnesses under oath for the provision of testimony in matters before the board.”

The board shall have the authority to investigate and review any complaint against an official or agency for violation of 13-10-90 (E-Verify requirements), 50-36-1 (use of the federal SAVE program for public benefits administration) or 36-80-23 (Sanctuary for illegals). Complaints may be received from any legal resident of this state who is also a legally registered voter.

“The board shall meet at a minimum of once every three months and shall send a notice to all interested parties of the places and times of its meetings. The board shall issue a written report of its findings in all complaints which shall include such evaluations, judgments, and recommendations as it deems appropriate.

Nothing contained in this Code section shall prohibit the Attorney General from seeking any other remedy available by law.”

Section 20.1

General statement that agriculture is integral to Georgia’s economy and that enforcement of American immigration laws will have an effect on agriculture. Also says the federal temporary guest worker visa system known as H2A can be improved and resolves to study how to improve H2A system and to study possibility of creating a state guest worker program. Requires a written report to the Governor on these items. (Note: this section was a last minute compromise provided at the request of several powerful South Georgia legislators who were not familiar with federal law. It can likely do no harm, but states lack any authority or ability to legalize illegal aliens or to make “guest workers” of them. Neither can a state legally deal with foreign nations to import workers. This is exclusively a federal issue. Even the ACLU testified against the idea in Utah. It is completely unworkable.

Section 21

Severability clause – any section found to be unconstitutional shall not affect the remaining sections

If any provision or part of any provision of this Act or the application of the same is held invalid or unconstitutional, the invalidity shall not affect the other provisions or applications of this Act or any other part of this Act than can be given effect without the invalid provision or application, and to this end, the provisions of this Act are severable.

The terms of this Act regarding immigration shall be construed to have the meanings consistent with such terms under federal immigration law.

The provisions of this Act shall be implemented in a manner consistent with federal laws governing immigration and civil rights.

Section 22

Effective dates

Section 17 of this Act shall become effective on January 1, 2012.

The remaining sections of this Act shall become effective on July 1, 2011. Except as otherwise expressly provided, the sections of this Act shall apply to offenses and violations occurring on or after their respective effective dates. (Note effective dates on section 12 for staggered implementation of E-Verify)

Section 23

All laws and parts of laws in conflict with this Act are repealed.

End

Read the preliminary injunction order from federal court HERE

Read the lawsuit from against the entire Act from organizations including the Georgia Association of Latino Elected Officials (GALEO), the American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC), National Immigration Law Center, The Georgia Latino Alliance for Human Rights, the Service Employees International Union (SEIU), the Task Force for the Homeless, DeamActivist.org, the Coalition for the Peoples’ Agenda, the Asian American Legal Advocacy Center, and Paul Bridges, mayor of Uvalda, Ga. also: The governments of Mexico, Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Peru HERE