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Construction Law

: The South Carolina Construction Law Blog

The New South Carolina Illegal Immigration Reform Act!

By Ryan McCabe

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            While traditionally a federal issue, numerous states have taken the immigration matter in their own hands. South Carolina has recently adopted the Illegal Immigration Reform Act (?the Act?). In their article published in the November 2008 South Carolina Lawyer, Christian E. Boesl and Charles L. Appleby IV discussed requirements of the Act that employers should keep in mind.

            Governor Stanford signed the Act on June 4, 2008. The Act affects both private and public employers. The Act also does not change an employer?s obligation to complete an Employment Eligibility Verification Form, however, also known as ?Form I-9.?

            To hire new employees, all private employers must have a valid employment license by July 1, 2009. The state will automatically impute a license to all private employers. The Act requires that all private employers verify if an employee is authorized to work. An employer may either (1) register in the federal program (E-Verify) or (2) employ only workers with, or eligible to get, a valid South Carolina driver?s license or identification ID. Employers cannot knowingly and intentionally employ unauthorized aliens.

            Public employers must use E-Verify for all new employees and must act in good faith to determine if a private service provider meets the Act requirements. A written statement by the private contractor certifying compliance is sufficient. Also called the Basic Pilot Program, E-Verify is available in all 50 states. The Act has only been extended until March 6, 2009 and it is up to Congress to authorize a longer extension. Employers may register for the program at https://www.vis-dhs.com and must give notice to employees and applicants.

            Employers must enter the information on Form I-9 into the E-Verify system and continue checking the employees? statuses. Most inquiries are resolved immediately; an employer will receive a ?tentative non-confirmation notice? otherwise. An employee has 8 federal workdays to clear up his status once a tentative non-confirmation notice is received. Employers must remember they cannot take adverse action (fire, suspend, not pay) against employees meanwhile. Once they receive a final non-confirmation, employers must terminate the employee. For more information about E-Verify, go to www.dhs.gov/e-verify.

            Asking an applicant for a driver?s license can violate federal laws on discriminatory practices. The employer may commit document abuse by improperly asking for a document to establish identity or work eligibility. Penalties for violations may range from $110 to $1,100. Employers, therefore, should consider not using this option.

            Private employers with more than 100 employees must comply with the Act by July 1, 2009. All other private employers must comply by July 1, 2010. Government contractors with over 500 employees must comply by January 1, 2009; the effective date for all other government contractors is July 1, 2009. All other contractors must comply with the Act by January 1, 2010.

            Not verifying work authorization is a separate violation for each new employee. Once notified of a violation, the employer has 72 hours to register with E-Verify and check the work status. If the employer knowingly or intentionally hires an unauthorized alien, the employer loses its business license for 10 to 30 days and must pay a $1,000 fine. Subsequent violations increase the time for suspension to at least five years. An employer can get a probationary license subject to several limitations.

            Employees and employers who knowingly make false, fictitiousm, or fraudulent claims can face jail time up to 5 years. The Act only applies to new employees. For old employees, compliance with Form I-9 is sufficient.

            Federal law created penalties for employers who hire unauthorized employees through the 1986 Immigration Reform and Control Act (IRCA). IRCA preempts any similar state law. It is uncertain how a South Carolina court would rule on this issue. A Pennsylvania District Court held that IRCA preempted state law. Supporters of the state act argued the act fell within the exceptions to preemption in IRCA. The court disagreed and found that the immigration was a national issue. However, the Arizona District Court, and later the Arizona Court of Appeals, found that the IRCA did not preempt the Arizona statute. The Court of Appeals noted that the statute had not been enforced against any employer and that its decision would not control challenges once an employer is sanctioned.

            Currently, 10 states require the use of E-Verify. Because of the inaccuracy of the database, Illinois prohibited its use. The Department of Homeland Security sued Illinois arguing that federal law preempts the Illinois statute. The suit is still in progress.

            This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.

Full post as published by The South Carolina Construction Law Blog on February 11, 2009 (boomark / email).