News
New Employment Eligibility Verification Requirement for All Employers Starts Soon
November, 28 2011
The South Carolina Illegal Immigration and Reform Act (“Act”) passed on June 4, 2008, required private employers to verify employment eligibility by one of two means. The law gave private employers the choice between verifying employees by using E-Verify, an online database maintained by the U.S. Department of Homeland Security, or by requiring the employees to show a driver’s license or ID from South Carolina or an approved state. On June 27, 2011, the legislature passed amendments to the Act. Those amendments eliminate the option of using driver’s licenses or state IDs and require that private employers verify all new hires using E-Verify beginning January 1, 2012. (Public employers already were required to use E-Verify under the previous law.)
The Act requires enrollment by all private employers in E-Verify. Employers enter information from new employees’ I-9 forms into the internet-based system. The system will then confirm the employees’ eligibility to work in the U.S., or provide instructions to the employer and employee if it cannot confirm eligibility. Enrollment in E-Verify requires that the employer designate individuals responsible for using the system, that those individuals complete online training, and that the employer agree to a Memorandum of Understanding with the U.S. government. More information on E-Verify is available from the Department of Homeland Security’s E-Verify website: www.dhs.gov/e-verify.
All employers in South Carolina must comply with new hiring regulations starting January 1, 2012. Within in three (3) business days of hiring an employee, the employer must complete the following:
- New employees must still fill out a current I-9 Form. The current I-9 form may be downloaded by clicking here.
- Enter employee’s information into the E-Verify system.
- If a temporary non-confirmation of eligibility is returned, take further steps as instructed by the E-Verify system. Employers must not take adverse action against an employee who is contesting a tentative non-confirmation. It is important to follow precisely the instruction set out by the E-Verify system.
Failure to enroll in and use E-verify can have varying degrees of penalties for non-complying employers. Prior to July 1, 2012, failure to verify new hires through E-Verify will result in the South Carolina Department of Labor, Licensing and Regulation (LLR) requiring the employer to swear that it has been in compliance with federal employment eligibility verification requirements from January 1, 2012 through the date of notification by LLR of a violation of state law, and to comply with the state law going forward. After July 1, 2012, a first violation will result in the employer’s being put on probation for one year, during which the employer must submit quarterly reports to LLR demonstrating compliance with the law. A subsequent violation of the verification requirement within three years will result in suspension of the employer’s license for at least 10 days and up to 30 days.
If a private employer knowingly or intentionally employs an unauthorized alien, LLR will suspend the employer’s license for at least 10 and up to 30 days. According to LLR, during a suspension or revocation, the employer may not engage in business, open to the public, employ an employee, or otherwise operate. To have the license reinstated, the employer must terminate the unauthorized alien’s employment and pay a reinstatement fee of up to $1,000. A second violation will result in suspension for at least 30 and up to 60 days, and a third violation will result in revocation of the employer’s license. More information about the law is available from LLR’s website.
Although the Act requires verification of new employees, an employer must not take other certain actions. Specifically, employers must not:
- E-Verify employees already on the payroll prior to the employer’s enrollment on E-Verify.
- Use E-Verify to pre-screen employment applicants. (That is, employers may not require applicants to fill out an I-9, or submit the applicant’s data to E-Verify, before hiring the applicant.)
- Influence or coerce an employee’s decision whether to contest a tentative non-confirmation.
- Request specific documents in order to activate E-Verify photo matching.
Employers must begin using E-Verify for all new hires on January 1, 2012.
If you have questions about your organization’s responsibilities under the Act or about E-Verify implementation, please contact your employment and labor counsel, or contact us.
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