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Living with Georgia’s HB 87

By Charles H. Kuck Email By Charles H. Kuck
July 2011
Living with Georgia’s HB 87

Can I get in trouble for having an unauthorized immigrant in my car when pulled over? Do I need to be careful in my social interactions with people who may be unauthorized? What precautions are needed in employing immigrants? These and several other questions about HB 87, Georgia’s new law, are unsettling immigrant communities in the state.

South Asians, like other immigrant communities, are faced with the consequences of dealing with Georgia’s notorious new law, House Bill 87, which was passed recently and goes into effect starting July 1, 2011.

The questions we have been receiving from many South Asians bear answering, so that everyone is prepared to respond appropriately, and within the constitutional boundaries, to questions from employers and law enforcement officials.

The most important thing to remember is that every person in the United States is entitled to the same constitutional protections as everyone else, regardless of immigration status. Here are answers to some questions that have come up frequently.

Will my employer ask me for my papers? (Or) What do I have to do for my employees?

HB 87 requires that certain private employers use E-Verify, or a federal program, to verify the eligibility of new employees to work legally in the country. Section 12 of HB 87 requires private employers with more than 500 full-time employees to register with E-Verify by January 1, 2012. Employers with 100 full-time employees must register for E-Verify by July 1, 2012, and employers with more than 10 full-time employees, by January 2, 2013. 

Only newly hired employees can be run through E-Verify! Employees already on payroll may not be retroactively screened by E-Verify. Also, E-Verify must be done only when a person is hired and must not be done as a screening process. So, your boss cannot ask you for additional papers as a result of HB 87, if you are currently employed there.

Employers of ALL sizes are still required by federal law to prepare a Form I-9 for every employee of the company (including themselves if they own and work at the company).  This includes even live-in nannies or housekeepers. Failure to keep Forms I-9 can result in significant fines. 

A word of warning to those filling out a Form I-9: never claim to be a U.S. citizen (unless you are one) on a Form I-9.  Doing so will subject you to a permanent ban from the United States. 

Will individuals or community groups be penalized for transporting or harboring an undocumented immigrant?

HB 87 makes it a crime (first a misdemeanor and then a felony) for any person to knowingly give a ride to an “illegal alien” or to give aid or help to an undocumented immigrant or to “induce” an undocumented immigrant to come or remain in Georgia (even if he is your brother-in-law). But, there are three groups of people who cannot be convicted of  transporting or harboring an undocumented person: 1) a person providing services to infants, children or victims of crimes;  2) a person providing emergency medical services (hospitals, ambulance drivers, etc.); or  3) an attorney representing a criminal defendant.  HB 87 also exempts a person providing “privately funded social services” from being convicted of harboring and transporting.  However, “privately funded social services” is not defined in the bill. The way it is written suggests that such a definition does not include churches. Thus, churches do not appear to be exempt,and members of churches, including pastors, still appear to be eligible for prosecution under this law. 

Merely associating with individuals who are undocumented, short of doing so while committing another criminal offense, does not subject a person to any criminal sanctions under the new Georgia law. With that said, however, it does not mean that the police will not make allegations or inquire with you about another person’s immigration status.

Here is something to remember. You never have to talk to the police without a lawyer present. Never say anything that will incriminate you or someone else about immigration-related issues. If you have any doubt about this in any situation, call an immigration attorney immediately, and do not say anything until you talk to that immigration lawyer. Exercise your right to remain silent!  While this may inconvenience you or the law enforcement officer, inconvenience is a small price to pay compared to a prison sentence or deportation!

Is it true that police can ask to see my papers?

HB 87 provides that when an officer has a good reason to believe that a person has committed a criminal violation (which includes traffic offenses in Georgia) the officer has the authority to seek to verify the person’s immigration status. The first step in verifying immigration status is to ask the person to produce a document that HB 87 says is verifiable proof of immigration status. If you do not provide a valid Georgia's Driver's License, a valid Georgia Identification card, or any valid identification document issued by the United States federal government, such as a valid I-94 card and a foreign passport, a U.S. passport, or military ID, you will be brought to the police station for the police to check your immigration status with ICE using your fingerprints. 

This is when you should exercise your constitutional right to remain silent. While a law enforcement officer can ask to see your papers, you do not have to respond. You could tell the officer, “I exercise my right to remain silent. I will not speak to you about any issues without a lawyer present.” 

If you provide a legal ID to the officer, the officer does NOT have the right to ask about your immigration status, and you should tell the officer that you do not have to respond to the question, as you have provided the required legal document. The officer also does NOT have the right to ask for the immigration status of other passengers in a vehicle, without identifying the crime they are suspected of committing. 

Does HB 87 stop an undocumented parent from obtaining legal benefits for U.S. citizen children?

The way Section 17 of HB 87 is written, it is possible, although it’s still unclear whether the new documentary requirements for obtaining public benefits will stop undocumented immigrants from applying for WIC (Women, Infants and Children) benefits, food stamps and other public benefits for their otherwise eligible and qualified U.S. citizen children. 

When will HB 87 go into effect?

Most of HB 87 becomes effective on July 1, 2011, except for Section 17, the section on the acceptance by a state agency of “secure and verifiable documents,” which is effective on January 1, 2012.

[Charles Kuck is an adjunct professor of law at the University of Georgia, a past president of the American Immigration Lawyers Association, and a managing partner at Kuck Immigration Partners LLC]

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