Georgia Anti-Immigration Legislation Is Back–Stop HB 125!

Charles Kuck Blog Leave a Comment

Two months, at the start of the legislative session, Representative Hightower sought community support for a bill to “fix” a key problem with the poorly written and nightmarishly shortsighted HB 87, specifically as it applied to the Secretary of State, and to counties and municipalities.  Many community organizations told Representative Hightower that they would be happy to publicly support what became HB 32.  HB 32 was intended to be a bill which reinstated the ability of the Secretary of State to renew licenses of all types in a much more efficient manner than dictated by the terms of HB 87.  There was no talk of, nor apparent desire to further enhance the anti-immigration reputation that Georgia had burnished for itself in HB 87.  However, a substitute bill, HB 125, has replaced HB 32, and has been hijacked, by whom it is unclear, and now is another anti-immigration vehicle destined to careen Georgia off the path of normalcy restored by the federal court decision striking down the worst part of HB 87.    What is clear after reviewing substitute HB 125 is that people have not been paying enough attention to the immigration doings at the state legislature this year.  This bill is bad and must be defeated
The Problems with “Substitute to HB 125”
HB 125 tries to broaden the application of Georgia’s existing anti-immigration legislation, and further limit Georgia’s so-called Secure and Verifiable Documents Act.   These changes smack of the efforts of Donald King and his continuing efforts to make Georgia into the anti-immigration laughing stock of the United States.
Section 1 – Expanding HB 87 by Modifying “Definitions.”
Section 1 of the bill subtly changes the definition of “contractor” to include ALL contractors, not just one who performs services for a Public Employer.  By doing so, the intent is clear—expand to whom immigration compliance laws in Georgia apply.  (I would imagine that the construction industry in Georgia might be a little upset by this provision, given the added costs such a change would have in their businesses.)
Another major definitional change in Section 1 is the expansion from the application of the Georgia immigration compliance rules from state construction contractors to ANY contractor or sub-contractor whether or not bidding is involved  (the added monetary limit is so low as to be laughable); again significantly expanding government involvement in business at a time when most sensible legislators are seeking to get government OUT of business’s business.
Section 1 also expands the application of HB 87 to every government entity in state even if they only have one employer (some smaller counties and entities were excluded previously because the costs of compliance outweighed the need of unnecessary compliance).   Further section 1 expands the applicability of the statute to everyone with a contract (written or not), with a state contractor, thus potentially covering virtually every business in the state.
Section 2 Makes HB 87 Cover Every Business In the State and Sets the State employers up for Mandatory IMAGE Enrollment.
It is not until you drill down on the language of this this section, and the actual language of HB 87 where you see the direction this bill is going – Mandatory usage of the ICE employment verification system called “IMAGE,” or what many in the immigration field call:  ICE as your Human Resource Department!  There are few, if any, voluntary IMAGE users. The vast majority of those enrolled in IMAGE because they have been previously found by ICE to have engaged in intentional hiring of undocumented workers.  It is simply overkill to require this as a standard for public employers. 
Remember that Immigration Compliance Commission the state legislature created without any public input at the end of the debate on HB 87?  Well, the substituted HB 125 is going to expand what the anti-immigration gadflies, can complain about, and thus expand the scope of this unfunded and non-oversighted government panel.    Just thought you would want to know what (and ultimately who) is behind this effort.
Section 3 Substantially Modifies and Increases the Mandatory Application of E-Verify to Georgia Employers, and Increases the Compliance Costs for State Agencies, Counties and Municipalities.
Section 3 makes several changes to existing provisions inserted by HB 87.  First, it eliminates the requirement that contracts be entered into “pursuant to this chapter.”  Some might argue that the language is superfluous.  But really, does anyone think our state legislature goes through old statutes looking for superfluous language?  No, the intent of removing this qualifying language is that it amplifies what was previously limited, here, contracts entered into by public employers for any services.  Thus, it is an automatic expansion of the E-Verify, and possibly the IMAGE requirement. 
Section 3 also “eliminates” the need for “public employers” to submit its specific annual report to the Department of Audits and Accounts (with several required factors), but substitutes another “annual report” to the same department to prove they are complying with the new terms of HB 87.  So, what really happened here?  What is the purpose of submitting one report for another?   It is bait and switch, because the clause the new reporting requirement refers to, merely incorporates into a new statute (found in Section 8 of Substitute HB 125), the same, if not GREATER reporting requirements.   Consequently, the compliance requirements for State, County, and Municipalities has become GREATER, than they have been under HB 87, thus creating an even greater unfunded mandate than has existed previously.
Section 4 Does Accomplish the Limited Purposes of Limiting HB 87 Compliance to New Licenses, But Still Requires Additional Compliance Efforts by Businesses and State Agencies, Counties and Municipalities.
Once again, the effort to “fix” a small problem with HB 87 is complicated by additional qualifying language in another part of the “fixed” statutory language.  HB 125 eliminates the requirement that business license renewals require counties and municipalities verify E-Verify compliance, but then adds the requirements that if once provided an E-Verify number that a renewed license cannot be issued if the number is different or not available for future renewals.  So, compliance work by the county or municipality is still required.  There is NO elimination or reduction of effort by counties or municipalities.  Further there is, like in Section 3, an INCREASED annual reporting requirement as modified in Section 8 of HB 125.  In the law, they call this bait and switch.  In legislating they apparently call this reform (or quite possibly intentional deception). 
Section 5 is a Simple Statutory Reference Change to a NEW section of the Law.
Section 5 purports to simply change a statutory reference from Section (c) to Section (d) of 50-36-1.  But, as we will see subsection (d) is modified from what was subsection (c), the penalties for noncompliance with the reporting requirements (enforced by the governmentally appointed and non-oversighted Immigration Review Board), could easily result in an increasing number of complaints and compliance costs (unfunded by the State) to State agencies, counties and municipalities.  Not only is there NO evidence that such a requirement is needed, but there is no evidence at all that the Immigration Review Board performs any useful purpose in a state that purports to support a more limited form of government.
Section 6 Eliminates Reference to Federal Statutes that Define “Public Benefits” Under State Law And Expands What are “Prohibited” Government Benefits under HB 87
Section 6 begins the changes to those put in place by HB 87 by intentionally eliminating reference to the federal statutes that define public benefits under federal immigration law.  Why?  That is a good question, the likely answer would be that it is superfluous; but again when does a legislature do this?  Basically never.  The actual answer should not surprise anyone. By eliminating what the federal government defines as public benefits, the state can do two things, expand what IT considers public benefits, AND potentially ignore federal law by what it does NOT define as public benefits, effectively negating federal law. 
Section 6 also eliminates the “list” that HB 87 mandated the Attorney General to create of what were “public benefits.”  One can only guess why such a change is being made, other than to allow Section (as noted below) to EXPAND what are prohibited public benefits beyond the list created by the Attorney General. 
Section 6 then adds to the list of what are “public benefits” under 50-36-1.  These “new” prohibited public benefits are:  Grants, Homestead Exemptions, Public and Assisted Housing, Retirement Benefits, Driver’s Licenses, and Tax Credits.   
Why is this important?  It is important because it means a person who cannot pass a SAVE check (the database maintained by USCIS for States, counties and municipalities to use to check the legal “status” of an immigrant in the US) is permitted to obtain this benefits. For example, under current law DACA students are allowed to obtain driver’s licenses.  This revision may enable to state to DENY drivers licenses to legally resident DACA grantees! 
Further, by adding homestead exemptions to this list anyone who claims a homestead exemption will now have to have his exemption processed under SAVE.  If a homeowner is undocumented (and there are a LOT of undocumented homeowners in Georgia), they will no longer be able to claim a homestead exemption.  Similar denials will result from the other newly added “public benefits.”
There is one curious change in Section 6.  It mandates that lawful presence be verified as defined under “federal immigration law.”  This can be taken to mean that when the federal government, as in the case for DACA students issues a policy memo on what legal presence is, that the state can ignore it, because it is not in federal immigration law, but rather in a DHS policy memo.  Because this section does not define “federal immigration law” it is impossible to understand its implication or its parameters.  This is an example of someone writing this legislation that clearly does not understand federal immigration law, its creation, its use, or its policy development.  This is yet another reason why a state legislature should not be creating legislation referencing or regulating immigration.  Undoubtedly this will result in federal court litigation should this provision become law. 
Section 6 also requires that state post secondary education “public benefits” comply with the federal requirements of 8 USC 1623.  What exactly does that statute say? 
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
Clearly, the state legislature wants no undocumented student to get in-state tuition. But a careful reading of this statute does exactly the opposite.  By making it the basis of state law, it allows the Board of Regents to ALLOW undocumented students to attend any state institution and to in-state tuition on the same terms and conditions it allows for out-of-state students to do so (for example by partial tuition scholarships).  This change, we could all live with.  But there are still problems here. 
Section 6 tries to remedy the problem created by HB 87 in requiring in person presentation of a “secure and verifiable” document.”  With a modification of subsection (e), now subsection (f), the original and sole limited purpose of a correction to HB 87 is finally found – by allowing electronic and facsimile copies of these documents to verify eligibility for public benefits for immigrants (and everyone else).  No one is opposed to this limited change to this provision. It is necessary to correct this massive oversight by the original authors of HB 87.  But it cannot and must not be part of another attack on immigrants in Georgia.  We are supposed to have moved past this.  Clearly some legislators have not done so. 
Section 7 Eliminates the Use of a Foreign Passport as a Secure and Verifiable Document without a Valid I-94 Card.  DHS will shortly STOP issuing I-94 cards!
Section 7 was clearly written by someone who does NOT understand or know “federal immigration law.”  By eliminating the use of a foreign passport without a valid I-94 card, the legislators are attempting, yet again, to limit the ability of undocumented parents to see permissible public benefits for their U.S. citizen children.  There is no other reason to so limit the use of a foreign passport (which the US government requires fulfills certain anti-fraud requirements, e.g. the document IS secure and verifiable). 
Even more stunning is the lack of research by the authors of the substitute HB 125, in failing to know that DHS has already announced the end of the issuance of an I-94 card.   While the provision allows for “other federal document” to prove immigration status, what are they?  What is that?  Frankly, at this time no one knows. We do know this that right now, NO ONE, undocumented or documented will be able to comply with this new requirement.
Section 8 Adds a New Code Section That Mandates Creation Of New Immigration Compliance System, Without Allocating Funds to Create the System
Typical of many all of the unfunded mandates of HB 87, Section 8 of Substitute HB 125 mandates, without any funding, that the Department of Audits create an electronic reporting system (and necessary support to all state agencies, counties, and municipalities) for immigration compliance under HB 87.  This database will contain the name and E-Verify compliance number of every private employer in the state who is required to comply with HB 87’s E-Verify requirements.  Additional reporting requirements also cover all “public benefits” (newly defined) covered under the mandate of the state agency, county or municipality.  This provision is clearly designed to make reporting more uniform or traceable, and easier for the anti-immigration gadflies to complain about omissions and oversights to the Immigration Review Board. 
Section 9 makes these changes effective on July 1, 2013.
Substitute HB 125 does MUCH more than make the changes requested by the Secretary of State and state agencies, counties and municipalities.  It attempt to dramatically alter the options available to legal and undocumented immigrants in Georgia, going to so far as to attempt to take Driver’s Licenses away from DACA recipients and Homestead Exemptions away from homeowners.    Apparently, someone has hijacked legitimate changes to the errors in HB 87 (which attempt was supported by many of the opponents of HB 87), in an effort try to bring anti-immigration legislation back to Georgia after the defeat of the key provision of HB 87. 
It cannot be more clearly stated.  These unannounced changes to what was a simple fix to HB 87 are an affront to the organizations that willingly supported it when it was announced.   This substitute HB 125 cannot pass.  Every effort must and will be made to stop these anti-immigration provisions from becoming law in Georgia. Call Speaker Ralston today at 404-656-5020 to ask him to stop HB 125 from being voted on and to stop Georgia from becoming the laughing stock of the U.S., again.    

About the Author

Charles Kuck

Managing Partner

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.