• State Immigration Law Updates: Alabama, Georgia and North Carolina
  • November 2, 2012 | Authors: Andrew W. Merrills; Stephen H. Smalley
  • Law Firms: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Atlanta Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Raleigh Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Atlanta Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Raleigh Office
  • While comprehensive immigration reform remains stalled at the federal level, individual states continue to implement measures relating to immigration.

    Appeals Court Rules on State Immigration Laws in Alabama and Georgia

    In three separate decisions issued on August 20, 2012, the Eleventh Circuit Court of Appeals, applying the U.S. Supreme Court's decision in Arizona v. United States, held that key provisions of state immigration laws passed by Alabama and Georgia (HB 56 and HB 87 respectively) are preempted by federal law.

    Among the several sections of the Alabama law blocked by the Eleventh Circuit were provisions:

    • Requiring public schools to check the immigration status of new students, on the basis that this measure interferes with the right to education and, therefore, violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution;
    • Criminalizing the failure to carry appropriate federal immigration documents;
    • Criminalizing an undocumented immigrant’s application, solicitation, or performance of work without employment authorization;
    • Preventing state courts from enforcing contracts in which one party is an undocumented immigrant; and
    • Penalizing employers that hire undocumented workers.

    The Eleventh Circuit also determined that measures in both the Alabama and Georgia laws making it a state crime to harbor, transport, or induce undocumented immigrants to enter the state are preempted by federal law.

    Echoing the earlier Supreme Court decision, the Eleventh Circuit, however, upheld contentious provisions in both laws that were similar to the section in Arizona's immigration enforcement law (S.B. 1070), which provides that officers who conduct a stop, detention, or arrest must make efforts to verify the person's immigration status with the federal government if reasonable suspicion exists that the person is in the United States illegally. The court, however, left open the possibility of future challenges on civil rights or due process grounds if the law is unconstitutionally applied.

    Practical implications

    The court’s decision seems to suggest that state immigration laws imposing criminal penalties on employees rather than employers and sanctioning employers for employing undocumented workers likely will not pass muster in court. However, even though portions of these laws have been enjoined, employers in Alabama and Georgia should take steps to comply with federal law by ensuring that their workforces are legal through good faith efforts to verify the employment eligibility of their workers.

    In light of the court’s rulings, foreign nationals who are lawfully stopped in these states and cannot show proper documentation may now be detained by law enforcement authorities in order to check their status against federal immigration databases. As such, Alabama and Georgia employers that have workforces with large numbers of foreign national employees may well be impacted by these decisions.

    Staggered Implementation of North Carolina’s E-Verify Law Commences in October 2012

    On June 23, 2011, North Carolina’s E-Verify legislation (HB 36) was signed into law. The law requires all cities, counties, and private employers with 25 or more employees in North Carolina to verify the employment authorization of new hires through E-Verify. E-Verify is an Internet-based system, administered by the federal government, which allows businesses to determine the eligibility of their employees to work in the United States. North Carolina is one of 19 states that have some form of E-Verify requirement for employers.

    Public universities, community colleges, and other North Carolina state agencies were previously required to use E-Verify under a separate law—SB 1523. Under HB 36, all counties and municipalities were required to begin using E-Verify by October 1, 2011. For private sector employers, participation is phased in more gradually according to the employer’s size, and the E-Verify requirement is effective in stages as follows:

    • October 1, 2012: private employers that employ 500 or more employees in North Carolina
    • January 1, 2013: employers that employ 100 or more, but fewer than 500 employees, in North Carolina
    • July 1, 2013: employers that employ 25 or more, but fewer than 100 employees, in North Carolina

    The E-Verify requirement does not apply to seasonal temporary employees who are employed for 90 days or fewer during a consecutive 12-month period. The law also does not apply to employers that employ fewer than 25 employees in North Carolina.

    Employers must register and participate in E-Verify by the applicable date. An employer covered by the legislation is required to enter a newly-hired employee’s information, as reported on the Form I-9, Employment Eligibility Verification, into the E-Verify system to confirm the eligibility of the employee to work in the United States.

    Penalties for violating North Carolina’s E-Verify law

    Employers that knowingly employ unauthorized workers will be penalized as follows:

    • For a first violation of the law, the employer must file a signed, sworn affidavit, within three business days, stating that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify. Failure to timely file the affidavit will result in a civil penalty of $10,000.
    • For the second violation, the employer is required to pay a civil penalty of $1,000 regardless of the number of required employee verifications the employer failed to make.
    • A third violation results in a civil penalty of $2,000 for each required employee verification that the employer failed to make.

    The law contains a provision allowing an employer to appeal any determination within 15 days of the decision.

    Complaints regarding violations of the E-Verify law

    Any person with a good faith belief that an employer is violating, or has violated, the E-Verify law may file a complaint with the North Carolina Commissioner of Labor. The Commissioner will investigate valid complaints and has the power to issue a subpoena for production of employment records as part of the investigation. If a complaint is found to be valid, the Commissioner will hold a hearing to determine whether a violation has occurred and issue fines if necessary. If the Commissioner concludes that there is a “reasonable likelihood” that an employee is an undocumented worker, the Commissioner must notify Immigration and Customs Enforcement (ICE) and local law enforcement agencies.