Immigration Legislation: What Does It Mean For Business?

In this interview, Anton Mertens, head of SGR's Immigration Practice, talks about where the immigration debate is headed and what changes businesses might expect.

Over the past few years, immigration has become a controversial and fiercely debated topic. Frustrated by an apparent lack of interest and action from the federal government, several states have attempted to take matters into their own hands by implementing their own immigration laws. In Georgia, for example, Governor Nathan Deal recently signed into law the Illegal Immigration Reform and Enforcement Act of 2011 (the “Act”), which will significantly change the way in which the state deals with illegal immigration and will penalize those who break the law. However, the law has been met with strong resistance from citizens and businesses, who claim it violates constitutional rights and will negatively impact industry. In this interview, Anton Mertens, head of SGR’s Immigration Practice, talks about where the immigration debate is headed and what changes businesses might expect.

Trust the Leaders: Many discussions involving immigration reform have stemmed from recent events in Arizona. Can you give us feedback?

Anton Mertens: As a border state, Arizona has been dealing with issues associated with illegal immigration for many years. Last year, frustrated by what the state viewed as a lack of support from the federal government, Arizona’s governor, Jan Brewer, decided to push for harsher immigration laws.
However, since immigration largely falls under the federal domain, when states start trying to create and implement their own immigration laws, there are almost always constitutional issues. For example, the part of the Arizona law that permits a law enforcement agent to ask to see the identification papers of anybody reasonably suspected to be an illegal immigrant raises the subject of racial profiling. It can also be argued that the law specifically targets the Hispanic population.

TTL: What are some of the requirements of the Georgia law?

AM: Certain sections of the Act require mandatory E-Verify for virtually all businesses. The law also
holds civilians more accountable for their interactions with illegal immigrants. For example, Section 7
of the Act makes it a misdemeanor to transport an illegal immigrant. In other words, if you’re a taxi driver and you unknowingly pick up a passenger who does not have valid legal status in the country, you are committing a crime and can be fined and jailed. Public transport workers could find themselves having to ask to see people’s papers. Not only does this again bring up the subject of racial profiling, it also raises fears that Georgia is becoming a “show me your papers” state. However, that section was recently challenged in federal court and that provision was blocked by U.S. District Court Judge Thomas Thrash.

TTL: What has been the reaction to the new law thus far in Georgia?

AM: There has been a strong negative reaction from several businesses. On June 2, 2011, a federal lawsuit was filed against the Georgia law. The plaintiffs included private citizens, groups of citizens and even elected officials. In addition, some 2,000 Atlanta taxi drivers recently banded together and filed suit, claiming that the law will negatively impact their business.

TTL: What are the legal stumbling blocks associated with the new immigration law?

AM: Despite the fact that the word “alien” is widely used in the legal context to describe a non-U.S. citizen, the term “illegal alien” is not defined anywhere in the federal Immigration and Nationality Act.
Although there is no clear definition of who or what constitutes an illegal alien, it is now a
punishable crime to be one. So, this inevitably prompts the question: who is an illegal immigrant? Is it any person from outside the U.S. who is not carrying valid identification papers? Is it somebody without legal status in the country? Or is it an alien who has committed a crime? The term needs to be more clearly defined.

TTL: Is racial profiling the major issue?

AM: It certainly is one of the key issues. In the United States, we have always strongly resisted the idea of national identification cards. Although we have Social Security numbers in the U.S., they are not linked to an identifying photograph. However, I’ve heard of law enforcement officers in Atlanta stopping people in grocery stores and on trains and asking to see their papers. On the flip side, you also hear people saying that the country is overrun by illegal immigrants, that the government isn’t doing enough and that we’re wasting valuable tax dollars filling up hospitals and overcrowding jails.

TTL: What impact is the new legislation having on businesses in Georgia?

AM: One major component of the law is that the new E-Verify system will soon be mandatory. Although all employers are required by law to check the identity of any new employee using the federal Form I-9, E-Verify is an extra step they will need to take in vetting new recruits. Since the system is linked to a person’s Social Security number, E-Verify can instantly check to see if the number that a new employee submits to the employer matches his or her name. If it doesn’t, the system will respond with a Tentative Non-Confirmation (TNC), after which the employee has a certain time period to resolve the issue.

TTL: Are businesses embracing E-Verify?

AM: It has been met with mixed results. Some companies are using the system with ease and Legislation with a great deal of success, while others have discovered that they have many undocumented workers and, as a result, have received Immigration and Customs Enforcement (ICE) notices. One of the loopholes of the E-Verify system is that it compares the picture on an employee’s green card to the one on his or her driver’s license to validate identity.

However, since many U.S. citizens do not have a passport or a photograph on record with the Department of Homeland Security, the system cannot validate a driver’s license photograph with a federal government-issued photo ID.

Because of this loophole, it is possible to bypass the system and even to commit identity fraud.
Another potential problem is that, so far, only about 300,000 employers have actually signed up for E-Verify. If all employers in the U.S. were suddenly to sign up, it would almost certainly overload and crash the system. Other critics claim that E-Verify is just another layer of government

TTL: When is E-Verify going to be mandated for all Georgia businesses?

AM: In Georgia, E-Verify is being phased in over a period of several years starting January 1, 2012
for businesses with 500 or more employees. By July 2013, it will be mandatory for all employers with
more than 10 employees to E-Verify all new hires. However, it is important to note that it will be
illegal for a company to E-Verify existing employees unless the business is a federal contractor. This is
to prevent companies from using E-Verify as a tool to discriminate against workers.

TTL: What is your advice to clients in regard to E-Verify?

AM: I am currently advising SGR clients not to sign up for E-Verify unless they are legally required to do so, since if a company is doing the right things and correctly filling out Form I-9, there really is no need for an additional level of screening. E-Verify means a company needs to devote extra time and
resources to administration and record keeping that simply is not necessary right now.

TTL: Where do you see immigration reform headed and what should it look like?

AM: Although there has been talk of some kind of amnesty program since 1986 when President
Reagan signed the Immigration Reform and Control Act (IRCA) into law, the general consensus seems
to be that the first step of any immigration reform should be to secure the nation’s borders. As a result
of IRCA, an estimated three million unauthorized immigrants received amnesty, and employers
were mandated to use Form I-9 to make sure their employees were work authorized. However, enforcement of the I-9 requirement was pretty lax in the beginning and undocumented immigrants
continued to flood into the country.

In the meantime, while the government grapples with illegal immigration, the legal immigration system also needs to be fixed. Because of inefficiencies in the system, well-educated people who
legally move to the U.S. are often required to wait anywhere between four and nine years for a green
card. For the U.S. to remain competitive globally and to attract the best talent from around the world, the immigration system desperately needs an overhaul.

TTL: What is the time frame for reform?

AM: When President Obama took office, part of his campaign platform was immigration reform in
the first 100 days. However, immigration is such a controversial topic, and our politics are so polarized, that compromise is difficult to achieve.

TTL: Overall, what is your opinion of the new Georgia legislation?

AM: With all the constitutional issues involved, I don’t believe the legislation will stand in its
current form. The bill may have been created with good intentions, but you have to look at its
unintended effects. In its current iteration, the law doesn’t just affect illegal immigrants; it affects
everybody around them, the general economy and, specifically, the agriculture and retail industries.

Of course, I am not saying that it is acceptable to be an undocumented immigrant in the United
States, but this huge issue needs to be addressed at the federal level. Individual states do not issue
passports, nor do they manage customs. Therefore, why should they attempt to legislate immigration? It is a job for the federal government.

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