Alabama Immigration Law Guidance for School Boards

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act includes several sections that affect the financial operations of Alabama school boards. There has been much confusion in determining the procedures necessary to implement the provisions of this law. Although guidance was placed on the Alabama Department of Education’s web site in late December, subsequent information from other state agencies is now available to provide this revised guidance for making a good faith effort to comply with this new law. [The law is now codified in state laws as Title 31, Chapter 13 of the Code of Alabama 1975.]

·  Effective April 1, 2012, every business entity or employer in Alabama is required to enroll in E-Verify and follow the related federal law and regulations for verifying the employment eligibility of newly hired employees using the E-Verify program. [See Section 31-13-15(b)].

·  Two other sections of the law require business entities and employers with one or more employees working in Alabama to utilize the E-Verify program for newly hired employees as a condition of a contract, grant, or incentive awarded by a public entity on or after January 1, 2012. [See Section 31-13-9(a) & (b) and Section 31-13-25(b)].

After enrolling in the federal E-Verify program, the school board is required to verify the immigration status of a newly hired employee (including a substitute employee) as part of the employment process by utilizing the E-Verify program. School boards are prohibited by federal laws from using E-Verify to pre-screen potential employees. However, school boards may inform applicants and potential employees that the school board now uses the federal E-Verify program for newly hired employees by providing the following notification:

Alabama school boards are required by state law to verify the employment eligibility of newly hired employees by using the federal E-Verify program. New employees are required to provide a Social Security number, an unexpired identity document that contains a photograph, and other acceptable documents that establish employment eligibility. In addition to determining whether a new hire is authorized to work in the United States, E-Verify will confirm that the employee’s name and Social Security number match.

Effective January 1, 2012, when the school board awards a contract or grant to a business entity or employer (that has one or more employees working in Alabama), Section 31-13-9(a) requires that the school board obtain a notarized affidavit and documentation of enrollment in the E-Verify program. [A grant is commonly awarded by a school board as a result of an application. A contract is usually awarded by a school board either as a result of a competitive bid or other procurement process such as a contractual agreement.] An affidavit form that complies with Section 31-13-9(a), (b) & (h) and Section 31-13-25(b) is attached to this document.

In some cases, a school board can be a subcontractor, such as a county commission contracting with a school board to provide meals for a summer feeding program. A school board that is a subcontractor on a project paid for by contract, grant or incentive by an Alabama public entity is required to provide subcontractor affidavit documents to the contractor. [See Section 31-13-9(c)]. In the more common situations where a contractor paid under a school board contract employs a subcontractor, the contractor would be responsible for obtaining the Section 31-13-9(c) affidavit documents from the subcontractor. A subcontractor affidavit form that complies with Section 31-13-9(c) is also attached to this document.

Because school boards often receive grants and contracts from the Alabama Department of Education, the Section 31-13-9(a) & (b) affidavit documents for each school board must be provided to the Alabama Department of Education before the contract or grant can be approved. An internal document file of school board affidavit forms has been established for department personnel to avoid multiple requests for affidavit forms for each contract, grant, or program application.

Business entities or employers with one or more employees working in Alabama should be notified of the requirements to enroll in the E-Verify program before the contract is signed or bids are awarded. The E-Verify affidavit documents may not be necessary for some contracts awarded by the school board because the contracting entity does not have any employees working in Alabama. The law does not address the documentation required in these situations. A letter, fax, e-mail, affidavit, or some type of documentation should be obtained from the business entity or employer stating that the contracting entity is not required to provide an E-Verify affidavit.

State law does not require that bid specifications include specific language addressing the requirements of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. However, including the immigration requirements in the bid specifications would be beneficial in approving the contract after the bid is awarded. Including the following language in bid specifications could avoid questions from potential bidders:

Alabama laws (see Title 31, Chapter 13 of the Code of Alabama 1975) require that, as a condition for the award of a contract by a school board to a business entity or employer with one or more employees working in Alabama, the business entity or employer must provide an affidavit and documentation of enrollment in the E-Verify program. During the performance of the contract, the business entity or employer shall participate in the E-Verify program and shall verify every employee that is required to be verified according to the applicable federal rules and regulations. An Affidavit of Alabama Immigration Law Compliance and the signature page from the contractor’s E-Verify Memorandum of Understanding must be included with the bid. If you do not believe these requirements are applicable to your entity, include an explanation justifying such exemption. An entity can obtain the E-Verify Memorandum of Understanding upon completion in the E-Verify enrollment process located at the federal web site www.uscis.gov/everify. The Alabama Department of Homeland Security (http://immigration.alabama.gov) has also established an E-Verify employer agent account for any business entity or employer with 25 or fewer employees that will provide a participating business entity or employer with the required documentation of enrollment in the E-Verify program. An Employer Identification Number (EIN), also known as a Federal Tax Identification Number, is required to enroll in E-Verify or to establish an E-Verify employer agent account.

FORM FOR SECTIONS 9 (c) BEASON-HAMMON ALABAMA TAXPAYER AND CITIZEN PROTECTION ACT; CODE OF ALABAMA, SECTIONS 31-13-9 (c)

AFFIDAVIT FOR SUBCONTRACTOR

(To be completed as a condition for performing work on a project paid for by contract, grant, or incentive by the State of Alabama, any political subdivision thereof, or any state-funded entity)

State of ______

County of ______

Before me, a notary public, personally appeared ______

(print name)

who, being duly sworn, says as follows:

As a condition for being a subcontractor on a project paid for by contract, grant, or incentive by the State of Alabama, any political subdivision thereof, or any state-funded entity, I hereby attest that in my capacity as

______(state position) for

______(state subcontractor name) said subcontractor shall not knowingly employ, hire for employment, or continue to employ an unauthorized alien.

I further attest that said subcontractor is enrolled in the E-Verify program prior to performing any work on the project.*

______Signature of Affiant

Sworn to and subscribed before me this _____day of ______, 2____.

I certify that the affiant is known (or made known) to me to be the identical party he or she claims to be.

______Signature and Seal of Notary Public

*(ATTACH DOCUMENTATION ESTABLISHING THAT SUBCONTRACTOR IS ENROLLED IN THE E-VERIFY PROGRAM)