March 13, 2011

Q&A – What about the Senate bill on illegal immigration? – Insider Advantage Georgia asks D.A. King about SB 40

Posted by D.A. King at 11:18 am - Email the author   Print This Post Print This Post  

Insider Advantage Georgia (HERE) a subscription Website. We are grateful for the permission to repost the below here.

What about the Senate bill on illegal immigration?

Q&A with D.A. King

March 12 2011

It seems that most of the discussion on illegal immigration legislation under the Gold Dome is focused on the House bill (HB 87) authored by Rep. Matt Ramsey. We wondered about that and asked frequent IA guest columnist D.A. King of the Dustin Inman Society about SB 40 from Senator Jack Murphy. King is a widely recognized authority on the issue, and actively involved in legislation and all things illegal immigration related at the Capitol. It should be noted that King has reportedly assisted with HB 87 and worked towards its passage.

IA: In layman’s terms, what are the major differences in the two bills, HB 87 and SB 40?

King: The House bill is far more comprehensive and wide-ranging and with great respect to all concerned, much more detailed and well thought-out. It is truly comprehensive immigration reform for Georgia.

Nobody disputes the fact that illegal employment is the direct cause of most illegal immigration. The heart of HB 87 is the requirement of businesses swearing to use of the no-cost E-Verify system to obtain or renew a business license/occupational tax certificate. This is intended to be a built-in self-enforcement method to encourage businesses with more than four employees to verify newly hired employees.

It has no exceptions for any industry or visa holder. Not so for SB 40. It has many significant, inherent problems and contradictions.

IA: What do you see as the major problems with SB 40?

Section 3 of SB 40 excludes from E-Verify verification “any person or entity with respect to any employees procured through the federal H2 worker visa program”.

It is not too “inside baseball” to point out – as it was in the Senate Judiciary committee – that H2 visas include the H2A category which is a temporary agriculture worker visa but also the H2B visa which covers a wide range of workers, industries and job descriptions. Just a few examples: Hospitality workers, hotels / motels, chefs, resorts, construction workers, painters, roofers, maintenance, janitorial, landscaping, security, restaurants and bars, warehouse, retail stores…

A self-poisoning pill in this exception to use of E-Verify is that under the user contract with the feds, the employer can depend on his authority to use the system to be quickly revoked by the Department of Homeland Security if he does not run all newly hired employees through the system as agreed. H2 visa holder or not.

This part of SB 40 is completely unworkable. An employer may not legally pick and choose which employee gets verified or use the system as a screening device before hiring.

SB 40 also dictates that once an employer obtains an E-Verify “user number”, which is given to all system users, that employer may not be authorized under state law to drop E-Verify and then go back, obtain new authorization and begin to use the system again. This is completely contrary to federal regulations on E-Verify. Any user can give 30 days notice and get out of the program, then regain authority at a later date with a new, but different, user number.

To complete the triple play on the unfortunate language of just the E-Verify section (Section 3), there is no penalty for violation. Not that it could be legally or practically implemented anyway. The bill allows for the labor Commissioner to adopt rules and regulations to implement enforcement some time in the future.

Sort of a penalty that may be named later.

IA: Please expand?

The problem with the 2006 Georgia immigration law – which was as good as could possibly have been passed at the time – is that there is no penalty for violation by any of the public employers or their contractors who are already required to use E-Verify and the federal system for verifying eligibility for public benefits (SAVE). We still don’t have 100% compliance on either – and this from people running our state and local governments and agencies. This is déjà vu all over again.

IA: Anything else?

You don’t have the space. But one gem is the striking in Section 1 of a simple but important sentence from the 2006 law that does a great and all encompassing job of defining “subcontractor” for public works purposes: “Subcontractor includes a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier.” There are many interested parties for whom that language is far too clear, complete and uncontestable.

IA: Any good ideas in SB 40 that are not in HB 87?

Yes, Section 6 is the beginning of a terrific idea. It ties the ability for businesses to deduct the wages of workers from their state income taxes to use of the E-Verify system. It needs some work and clarification, but is sound and would be quite workable.

IA: Do you think SB 40 will pass a floor vote?

SB 40 is not ready for the big game. Were this bill to be presented as is to the entire Senate, let alone actually passed, that body would become a laughing stock nationwide for anyone with a basic understanding of the issue. I don’t envy the job of anyone who would be assigned the task of reconditioning this one.

IA: Any advice for the Georgia Senate on these bills?

Yes. If the senate wants to save time and trouble, and pass a workable, well-written and lucid piece of comprehensive immigration reform legislation to advance enforcement in Georgia, they may want to consider simply substituting the language of the House bill for all of SB 40, adding in sharpened language aimed at requiring documented and constant use of E-Verify to deduct the cost of wages from state income tax returns, voting YEA and moving on.

IA: Thanks for your input.