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What’s your responsibility under the new Georgia immigration law?

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in Compensation and Benefits,Employment Law,Hiring,Human Resources

The Georgia Security and Immigration Compliance Act (GSICA), signed into law last April, imposes numerous responsibilities on employers. Although the law focuses primarily on public employers and contractors, some of the less-publicized aspects of the law will affect private employers, too.

Certain provisions take effect July 1, 2007, but employers should prepare now by learning which aspects of the law apply to them, what they must do to comply and when they must be in compliance.

For public employers, size matters. The law doesn’t consider all of Georgia state government as one entity. It specifically defines the term “public employer” as “every department, agency, or instrumentality of the state or political subdivision of the state.”

As of July 1, 2007, all public agencies, regardless of size, must register and participate in the electronic federal work authorization program to verify work verification documents from all new hires (see box below).

The next step public employers (and contractors doing business with public employers) take depends on the entity’s size.

Contractors and subcontractors entering into contracts with public entities must also register and participate in the federal work authorization program starting July 1, 2007, if they employ 500 or more employees. That threshold is July 1, 2008, if they employ 100 or more employees. All public contractors and subcontractors must be registered and participate after July 1, 2009.

Private employer concerns. Private employers would be wise to tighten up their hiring practices, paying particular attention to the I-9 form and accompanying identification.

Under the new law, employers can’t deduct the wages they pay to unauthorized employees on state income taxes. That’s true whether the wages are paid through payroll or as independent contractors. That provision takes effect with wages or remuneration paid after Jan. 1, 2008.

The law does create a safe harbor for employers. Any worker who presents a valid license or identification card from the Georgia Department of Driver Services is considered an authorized worker for Georgia income tax purposes. Employers should copy the identification cards presented by all new hires and keep them on file for as long as they could possibly be audited for a year wages were paid to that employee.

f you pay a person as an independent contractor and provide a Form 1099 at the end of the year, the new law requires you to either:

  • Obtain a correct Social Security number from the individual.
  • Obtain an IRS-issued taxpayer ID number provided for nonresident aliens.
  • Or, withhold 6 percent of the employee’s compensation for state income tax purposes.

Again, careful record-keeping is important. Copy all ID cards presented and keep the copies on file as long as they could possibly be relevant.

Crackdown on human trafficking. The GSICA gives law enforcement more tools to combat human trafficking for purposes of labor or sexual servitude. Specifically, the law will target employers who induce or deceive illegal workers to come into the country to work or perform sexual services. The law creates criminal penalties for such acts ranging from one to 20 years in prison.

Helping immigrants? Prepare to register. One of the law’s chapters aims to professionalize immigration assistance services by requiring nonlawyers who assist immigrants to register for a business license.

The law defines immigration assistance service as “any information or action provided or offered to customers or prospective customers related to immigration matters, excluding legal advice.”

The definition is expansive and employers could easily cross the line if an immigrant seeks help in dealing with immigration forms.

Dealing with a revealed illegal. The GSICA also places requirements on law enforcement personnel. Police officers must now make a reasonable effort to determine a person’s country of citizenship when they arrest someone. Should you find out one of your employees is illegal once he or she is arrested, you should terminate the employee at once.  

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