Outdoing Arizona and Alabama: Georgia’s Quest for Immigration Compliance SB 160

[Editor’s Note: Even in the wake of S.744 (the Senate’s Immigration Bill), states are keen on exerting their influence in the immigration compliance debate.  Attorney Charles Kuck, Managing Partner of Kuck Immigration Partners LLC in Atlanta, gives us a taste of the legislative developments in his state in today’s article and explains why SB 160 is not only a bad law for Georgia, but a badly written one at that.]

The Georgia State Legislature passed SB 160 this last session and just signed into law by Governor Nathan Deal, which greatly expands Georgia’s previous immigration compliance law HB 87.  SB 160 potentially imposes greater hardships to many state sub-contractors, increases the scope of influence of the Immigration Enforcement Review Board (IERB), while likely violating federal law.

Simply put, SB 160 makes it harder to legitimately do business in Georgia.

Section 1 expands HB 87 (Georgia’s Anti-Immigration law) by modifying its “definition” of “contractor” to include nearly every sub-contractor, with the exception of attorneys.   This provision means that THOUSANDS of private businesses, essentially because of their privy of contract with a state contractor, will now be subject to the state’s mandatory E-Verify requirement, even if they have less than 11 employees!

Section 2 extends HB 87’s E-Verify requirement by potentially making IMAGE a requirement for all employers by way of the IERB.

Section 3 achieves the original purpose of HB 87 by fixing the problems caused to public entities but imposes significant costs to employers.

Section 4 limits HB 87’s compliance requirement to NEW licenses, thus making the Secretary of State’s job easier, but again, at what cost?

Section 5 reemphasizes that the IERB has an enormous ability to substantially punish state agencies, and county and city governments, should it ever find a “violation” of the state’s Anti-Sanctuary Policy (a violation of such policy that has never existed in Georgia).

Section 6 eliminates the Federal and Georgia’s Attorney General’s definitions of “Public Benefits” and replaces it with “Public Benefits” Grants, Public and Assisted Housing, Retirement Benefits, and State Driver Licenses.  The clear intent of Section 6 was to take away driver’s licenses from federal DACA beneficiaries who already have driver’s license under current state law.  One immediate impact would require thousands of Georgians who live in public and assisted housing to prove their legal immigration status (including citizens) to continue to receive this “public benefit.”  How that saves the state money is yet to be seen.  There were/have been no public hearings on SB 160 and no financial impact study on its economic impact.

Section 7 eliminates the use of a foreign passport as a secure and verifiable document, without an accompanying Form I-94 (which WAS proof of status, but which will no longer be issued by Customs and Border Protection agents when they admit someone into the US), or other proof of  “lawful immigration status” OR “lawful presence” in the United states.  The clear intent of this section is to eliminate the ability of any undocumented foreign national from signing to obtain lawful benefits for their U.S. citizen children.  These benefits include enrolling children in school, receiving Women/Infant/Children (WIC) benefits for their children, or any of the other benefits the children are legally entitled to receive. In its current form, SB 160 confuses both the legal terms “lawful immigration status” and “lawful presence,” which are two very discrete issues in federal immigration law.  The bill also treats the acceptance of a passport differently than the federal government.   (It’s likely this section will be contested and eventually struck down in court.)

Section 8 mandates creation of a new (unfunded) immigration compliance system.

Section 9 implements all these changes on July 1, 2013!

Finally, Section 10 repeals all contravening laws and statutes, without mentioning them.

However, there is a key provision missing from this bill — a severability clause.  Without such a clause, if any part of SB 160 is declared unconstitutional, then the entire law could well be struck down.

In light of all of this, it seems that erring on the side of justice, constitutionality, and fairness, Governor Deal’s decision to sign SB 160 was certainly not in the best interest of Georgians

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Charles Kuck is the Managing Partner of Kuck Immigration Partners LLC, based in Atlanta, Georgia.  Mr. Kuck is the Past-President of the American Immigration Lawyers Association (AILA) and currently serves on the Board of Directors of the Georgia Council of International Visitors (GCIV).  You can read Mr. Kuck’s full article on SB 160 on his immigration blog here.