IMMIGRATION UPDATE FOR GEORGIA PUBLIC SCHOOLS Debra Golymbieski Wilson, Morton & Downs, LLC Decatur, Georgia debrag@wmdlegal.com Dan Murphy Lewis & Murphy, LLP Winder, Georgia Danmurphy_1@msn.com
The plan? Senate Bill 160 Security & Immigration Act & SAVE Annual Reporting Requirements Immigration Review Board Practical implications?
Public schools and immigration Plyler v. Doe (1982)(Undocumented children of alien parents cannot be denied public education) 14 th Amend & Equal Protection applies Children can affect neither their parents conduct nor their own status Ambach v. Norwick (1979)(State may refuse to employ teachers who are eligible to be citizens, but decline to do so) Teacher as role model, promoter of civic virtues & assimilative force Arizona SB 1070 upheld in part/struck down in part (2012)
Security and Immigration and SAVE Where did we start? 2006-governments could not award contracts to contractors who were not e-verify participants 2009-Amendment requiring contractor affidavits 2010-Amendment to address physical performance of services 2011-More amendments 2013-Current (SB 160) Amendment defines physical performance of services with more specificity In additional to the above, SAVE was also amended in 2012
Litigation re: HB 87 (2011) Georgia Latino Alliance for Human Rights 3 decisions (so far) 11 th Circuit (2012) Enjoins enforcement of Section 7 (transporting/concealing/ inducing illegal alien) But upholds Section 8 More challenges in the future?
SB 160 FINAL: Physical Performance of Services (4) 'Physical performance of services' means the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to public real property within this state, including the construction, reconstruction, or maintenance of all or part of a public road; or any other performance of labor or services for a public employer within this state under a contract or other using a bidding process or by contract wherein the labor or services exceed $2,499.99; provided, however, that such term shall not include any contract between a public employer and an individual who is licensed pursuant to Title 26 or Title 43 or by the State Bar of Georgia and is in good standing when such contract is for services to be rendered by such individual.
What s covered? 2007 AG opines that law was not limited to public works contracts 2010 General Assembly adds definition 2010 AG concludes this is now limited to public works contracts 2011 AG advises that affidavit req. only applies to public works contract Also in 2011, AG advises that routine operation, maintenance & repair not exempt from affidavit req. Then 2012 opinion says rule applies to more than buildings/roads, but not to all labor & services contracts
Current exemptions? (1) Labor & services under $2,499.99 Bid or contract? (2) Or, contracts with an individual licensed per Title 26 (food, drug & cosmetics) Title 43 (professions & businesses) State Bar (duh?) (3) Contractors w/ no employees (see below)
SB 160 FINAL: Contractor, Public employer & Subcontractor (4) 'Contractor' means a person or entity that enters into a contract for the physical performance of services with a public employer. (5) 'Public employer' means every department, agency, or instrumentality of the this state or a political subdivision of the this state with more than one employee. (6) 'Subcontractor' means a person or entity having privity of contract with a contractor, subcontractor, or subsubcontractor and includes a contract employee or staffing agency.
8 REQUIREMENTS OF SECURITY AND IMMIGRATION ACT 1) Every Public Employer Must Register with E-verify Register with E-Verify Verify all new hires through E-Verify 2) Post agency s E-Verify number on your website
8 requirements 3) Public employer is prohibited from entering into a contract for the physical performance of services unless the contractor is registered with E-Verify. - Bids are to include E-Verify affidavits 4) Affidavits must be maintained by public employers for a period of 5 years from date of receipt.
The 8, continued 5) Subcontractors must provide subcontractor affidavits to the contractor. 6) Sub-subcontractors must provide subsubcontractor affidavit. -Dept of Audits has forms on their website. http://www.audits.ga.gov/nalgad/illegalimmigrat ionreformandenforcementact.html 7) For contractors who do not have any employees, driver s license or state issued I.D. is acceptable if issued by a state that verifies immigration status prior to issuing. (List of compliant states-hand out)
You didn t think you d get away without reporting, did you? 8) All public employers have an annual reporting requirement to the Department of Audits as per O.C.G.A. 50-36-4 (SAVE) - Dept of Audits conducts annual compliance audits on a minimum of at least one-half of the reporting agencies. - Consequences for non-compliance twice in a 5 year period
You ve been audited and it s not good! 30 days to correct If not correct, excluded from list of qualified local govt until corrected At any time, local govt may appeal to OSAH New, compliant report shall correct prior report No violation as a result of actions of county constitutional officer
NOW ON TO SAVE Systematic Alien Verification for Entitlements A political subdivision providing or administering a public benefit shall require every applicant for such benefit to: 1) Provide at least 1 secure and verifiable document (list in handout) 2) Execute a signed and sworn affidavit verifying the applicant s lawful presence in the United States
Public benefits, SAVE & SB 160 General Assembly added following to definition 1) Grants 2) Public housing & assistant housing 3) Retirement benefits 4) State issued driver s license and identification card
How does a SAVE Affidavit compare w/ an E-Verify Contractor s Affidavit? Applicants for public benefits Local government must verify their lawful presence in the U.S. Not applicable to for any purpose for which lawful presence in the United States under federal immigration law is not required by law, ordinance, or regulation. Supreme Court & public education (See Plyler above) Satisfied by providing 1) One secure, verifiable document from list in statute 2) Executed SAVE Affidavit E-Verify Contractor s Affidavit submits Fed Work Authorization # w/ sworn statement
Sounds simple but What does providing or administering a public benefit mean for school systems? Attorney General s list of benefits, formerly including contracts vs. Dept. of Homeland Security s administration of the SAVE program
Who s Overseeing All of This? GA Dept of Audits-Compliance Audits and reporting requirements GA Dept of Labor Rules-Chapter 300-10-1 Immigration Enforcement Review Board- 7 member board, review & investigate complaints, conduct hearings, adopt rules & regulations, subpoena relevant documents and witnesses
Back to that Reporting Requirement For both Security and Immigration Act and SAVE, each agency shall submit an annual immigration compliance report by December 31 for the annual reporting period of December 1 of previous year through November 30 of year of report. Dept of Audits has created an immigration compliance reporting system http://www.audits.ga.gov/nalgad/illegalimmigrationrefo rmandenforcementact.html
But I m exempt! Some contractors are confusing the county/city business license rules with the contracting rules Private employers w/ less than 11 employees may submit affidavit (not req. to participate in E-verify) To obtain a business license from the City/County But public contracting requires E-verify for all contractors EXCEPT contractor with NO employees and NO intent to hire any employees Authority? Cite to DoA FAQ, available from website
Immigration Enforcement Review Board The IERB Initial Review (does complaint fall w/n jurisdiction of IERB) Initial hearing (evidence taken re: alleged violation) Conducted by panel (2 or more) Subpoena s available Sanction hearing and/or remedial action Appellate process to full (7 member (IERB) A legally registered voter & State resident may file complaint Form on website & mailed to IERB Must allege public agency or employee violated or failed to enforce an eligibility status provision If violation found, agency or employee has 30 days to respond
March 20, 2013 AG Opinion IERB interprets rule that initial decision must be reached w/n 60 days of initial hearing Only required to meet 3x annually AG-no statutory time frame w/n IERB must hold initial hearing upon receiving complaint But use due diligence and hold hearings w/n a reasonable period of time
You now know everything you need to know at least about the immigration update Take aways: 1) Have proper forms 2) Use proper forms 3) Report on time 4) Don t be surprised if the Dept of Audits shows up to audit 5) The definitions have been honed now and there s more certainty
Thank you for your very kind attention!