Georgia E-Verify

¹ An exempt contractor or sub-contractor can meet the requirements of the law by providing an unexpired driver’s license or identification card issued by a state on a list of approved states. A contractor or sub-contractor is exempt if he is an individual with no employees and no intent to hire employees to work on the contract. See below for even more info.

² For public contracts, the definition of “employer” does not include individuals licensed under Title 26 or Title 43 of the OCGA, or the State Bar of Georgia, whose license is in good standing. See below for exempted professions.

³ A qualifying contract is any service or labor contract over $2499.99. Qualifying contracts are for services like landscaping, janitorial, construction, consulting, security and testing, but not for contracts that do not require the physical performance of services like equipment purchases, office supplies, leases or rentals.

I already report our new hires through the Georgia new hire program. Why do this?

Federal and State law requires employers to report newly hired and re-hired employees in Georgia to the Georgia New Hire Reporting Program. It and E-Verify are not the same thing, nor does new hire reporting replace E-Verify when E-Verify is required. Georgia employers who meet the legal requirement for E-Verify must participate in both.

How do I count employees to determine if I must enroll my company?

For the purposes of E-Verify, an “employee” is only those individuals (i) “whose work is performed under the direction and supervision of the employer and whose employer withholds FICA, federal income tax, or state income tax from such individual’s compensation or whose employer issues to such individual for purposes of documenting compensation a form I.R.S. W-2 but not a form I.R.S. 1099” and (ii) who are “employed to work not less than 35 hours per week”. In other words, you will not count independent contractors nor employees who work fewer than 35 hours a week. For the purpose of renewing your business license, the number of employees on January 1 determines whether or not you are required to enroll. Remember that, if you hold or are seeking a public contract, you may be required to enroll regardless of how many full-time employees you have.

We are not based in Georgia, but we have employees there. Does GA law require us to enroll?

The answer to this question hinges on the Georgia law’s definition of a “full-time employee” which, for the purpose of E-Verify, does not distinguish between in-state and out-of-state workers. Generally, if your company would be required to enroll were it located within the state (more than 10 employees under the same FEIN, holding a public contract, etc.), then you are probably required to enroll. However, we can enroll your Georgia hiring site(s) only, which would not obligate you to verify all new hires company-wide. If your Georgia employees work under a different FEIN, then only those employees should be counted in determining whether or not state law requires enrollment.

We are working on a contract with a government agency. We have fewer than 10 employees. We are exempt from E-Verify, right?

No, probably not. The “fewer than 10” (actually, fewer than 11) exemption applies to private employers (those who don’t hold a public contract). If you are working on a public contract, you must enroll regardless of the number of employees you have unless you have no employees and no intent to hire any to work on the contract.

The following is from an FAQ for GA government agencies from the GA Department of Audits and Accounts web site:

Q33: Are contractors with fewer than 10 employees exempt from the contractor affidavit submission requirements in O.C.G.A. §13-10-91?

A33: No, [but] a contractor with NO employees and no intent to hire employees shall, in lieu of the affidavit required by O.C.G.A. §13-10-91(b), submit a copy of their state issued driver’s license or identification card. The driver’s license or identification card is acceptable only if it is issued by a state that verifies lawful immigration status [(SecureID)] prior to issuance.

Q34: My contractor insists they do not have to provide an E-Verify contractor affidavit because they have less than 10 employees. Where are they getting this information and is it true?

A34: According to Georgia law (OCGA §13-10-91), before the city or county can contract with a business for the physical performance of services (as that term is defined in OCGA §13-10-90), the contractor must submit an affidavit that they have registered for and use E-Verify. The ONLY exception to this is if you are working with a contractor with no employees and no intent to hire employees. In this case, instead of the affidavit, they must provide you with their driver’s license (and a driver’s license is only acceptable IF it is issued by a state that verifies lawful immigration status prior to issuance).

This contractor is confusing the above requirements in OCGA §13-10-91 with the requirements for getting or renewing a business license from a city or county. The business license requirements are in a different Code section (OCGA §36-60-6). Under the business license provisions, private employers with more than ten employees are required to provide an affidavit (this is a different affidavit from affidavit referred to above) to the city or county stating that they use E-Verify. Private employers with fewer than eleven employees submit a separate affidavit stating that they are exempt from E-Verify. So, although a private employer with ten or less employees may be exempt from registering for E-Verify for the purpose of getting their business license, if they want to contract with a public employer, they are going to have to register for E-Verify if they have ANY employees.

Certain professions are exempt from the E-Verify requirement. What are those exempted professions?

Titles 26 and 43 of the O.C.G.A. list the professions that are exempt from the E-Verify requirement if the professionals are registered with the Secretary of State. Professional Services are limited to those services defined by statute as a “profession” or “professional service.” For example, the following services are statutorily defined as “professions” or “professional services”: certified public accountancy, actuarial services, architecture, landscape architecture, registered interior designers, licensed or accredited appraisers or licensed or accredited financial analysts providing opinions of value, licensed structural pest controllers, chiropractic, dentistry, professional engineering, podiatry, pharmacy, veterinary medicine, registered professional nursing, harbor piloting, land surveying, law, psychology, medicine and surgery, optometry, and osteopathy. To be exempt, the professional must be the one to perform the service. For example, a sole proprietor real property appraiser may be exempt, but an appraisal agency may not.