South Carolina Office of Immigrant Worker Compliance

FAQs

Q - Is the H-2-A visa an acceptable document for verifying a new hire under the state immigration law?
A - Section 41-8-20 of the state law requires that employers verify new hires within five business days, either through E-verify or with a valid South Carolina driver’s license/ID or a driver’s license/ID from a state approved by the Department of Motor Vehicles. It is our understanding that an employee with the H-2-A visa is unable to secure a social security number, and this would prevent the employer from verifying the new employee through E-verify or the driver’s license/ID option. The H-2-A visa is issued by the U.S. Department of Homeland Security and authorizes the possessor to work in the United States. Furthermore, the visa lists the holder’s employer and the time period in which he/she may be employed in the United States. Therefore, recognizing the federal preemption issues associated with these visas, the Department of LLR has taken the position that failure to E-verify or require a valid driver’s license/ID for these individuals is a de minimus violation of state law and will not be sanctioned under Title 41, Section 8.

Q - I want to hire employees with H-2-B visas. What do I need to do to be compliant with the state immigration law?
A - Section 41-8-20 of the state law requires that employers verify new hires within five business days, either through E-verify or with a valid South Carolina driver’s license/ID or a driver’s license/ID from a state approved by the Department of Motor Vehicles. It is our understanding that an employee with the H-2-B visa is able to secure a social security number, unlike the holder of an H-2-A visa. Therefore, the Department of LLR has taken the position that failure to E-verify or require a valid driver’s license/ID for these individuals is a violation of state law and will be sanctioned under Title 41, Section 8. In addition, the Department will not issue a citation where the employer presents a copy of an employee’s H-2-B visa and provides documentation that the employee has made application to the United States Social Security Administration for a social security number. The investigator will: (1)Without examining the federal I-9 form, have the employer state in writing the company has completed the I-9 employment eligibility process for the employee in question; (2)Have the employer state what documents were used to verify eligibility on the I-9 form; (3)Have the employer state the steps that are being taken to secure a social security number for the employee, and give the status of that process; and (4) Have the employer affirm the Department of LLR will be notified once the employee secures a social security number and is authorized to work unconditionally by E-verify or obtains a valid driver’s license/ID.

Q - I’m not clear about how you determine an employee’s eligibility for a South Carolina driver’s license/ID under the state immigration law. Could you explain in detail?
A - Section 41-8-20 of the state law requires that employers verify new hires within five business days, either through E-verify or with a valid South Carolina driver’s license/ID or a driver’s license/ID from a state approved by the Department of Motor Vehicles. 41-8-20 (B)(2) authorizes employment of workers who at the time of employment are eligible to obtain a South Carolina driver’s license or identification card as stated in Sections 56-1-40 through 56-1-90. Employers may determine eligibility of a United States citizen to obtain a South Carolina driver’s license/ID by: (1)Having the employee secure a letter from the South Carolina Department of Motor Vehicles certifying that he/she qualifies for a state driver’s license/ID; or (2)Securing a legal opinion from an attorney stating he/she has reviewed Sections 56-1-40 through 56-1-90 and the credentials of the applicant, and has determined that the worker qualifies for a South Carolina driver’s license/ID. According to the state DMV, international customers “qualify” for a South Carolina driver’s license/ID only after their documents are authenticated by the DMV through the U.S. Department of Homeland Security’s data base.

Q - When it comes to e-verifying employees, am I in compliance with the state immigration law as long as I comply with the rules/regulations established by the Department of Homeland Security for E-verify users?
A - Yes. Where an employer is enrolled in E-verify and following the rules/policies established by the United States Department of Homeland Security regarding participation in E-verify, the Department of LLR will not sanction the employer under Title 41, Section 8.

Q - Are agricultural employers covered by the South Carolina Illegal Immigration Reform Act?
A - Yes. The South Carolina Illegal Aliens and Private Employment law applies to “any person for whom an individual performs a service, of whatever nature, as an employee,” as defined in the state income tax code. The income tax code defines an employee as a resident individual receiving wages for services regardless of where the services are rendered and nonresident individual receiving wages for services rendered in this State. Based upon the legislative history of the Illegal Aliens and Private Employment law and the wording of the statutes, the Department of Labor, Licensing and Regulation has concluded that it was the intent of the state legislature to cover employment in agriculture when the law was enacted in 2008.

Q - During the first year of enforcement of the state immigration law, what was the most frequently cited violation against businesses that employ 100 or more workers?
A - The most cited violation was failure to verify the work authorization of a new employee within five business days of hiring. The audit would show that an employer had signed up to verify all new hires through E-verify. E-verify requires that employers verify new hires within three business days of employment. South Carolina law gives employers five business days. The human resources person or manager responsible for verifying new hires would get busy or forget to verify the new workers. The audit would determine that workers were verified two weeks or two months after being hired. Each instance of failure to verify a new hire on time carries a penalty of up to $1,000.

Q - My company employs 45 workers, and the effective date for compliance with the state immigration law for us is July 1, 2010. Must we go back and verify everybody on the payroll hired prior to July 1, 2010?
A - The law requires that you verify your new hires beginning July 1, 2010 and afterwards. While the law does not mandate going back, a “best practice” would be to review the work authorization of all of your employees hired prior to July 1, 2010, in particular if you believe your company didn’t do a thorough examination of documents in the past. If you identify a worker who is not authorized to work in this country, you must terminate the worker to avoid a challenge to your imputed license.

Q - I know a business that hires illegal workers. Where do I file a complaint?
A - The South Carolina Department of Labor, Licensing and Regulation is authorized to investigate complaints and randomly audit companies for compliance. The law requires that complaints be in writing and signed. You can download a complaint form here: http://www.llr.state.sc.us/Immigration/PDF/Immigration%20Employer%20Complaint%20Form.pdf

Q - I have two employees who have worked for me for more than 10 years, and they are illegally in this country. Are they grandfathered in by the state immigration law?
A - No. No one is “grandfathered” in by the state immigration law. At any time an employer has knowledge that an employee, regardless of hire date, is an illegal alien and unauthorized to work in this country, he/she is required to terminate the employee. Failure to do so could subject the employer to a citation for knowingly and intentionally employing an illegal alien and the suspension of the employer’s imputed license.

Q - When the law takes effect on July 1, 2010 for my small business, can I still hire employees on a permanent resident card and social security card?
A - The only way you can hire an employee with a permanent resident card and social security card after July 1, 2010 is to be enrolled in E-verify and to clear the credentials through E-verify. Your other option would be to have the employee produce a valid South Carolina driver’s license/identification card, demonstrate that he/she qualifies for a South Carolina driver’s license/ID, or produce a valid driver’s license/ID card from a state approved by the South Carolina Department of Motor Vehicles.

Q - Our company verifies all new hires through E-verify. We have hired a legal alien from Germany, but we can’t run his credentials through E-verify until he gets his social security number. He has applied for a social security card through the Social Security Administration. E-verify rules say we should continue to employ him while he waits for SSA to issue his card. What does the state immigration law say?
A - The state immigration law says you should comply with the E-verify rules. Therefore, continue to employ the worker while he waits for the Social Security Administration to issue his number. You should document that the employee has applied for a social security card from SSA in the event the Department of Labor, Licensing and Regulation conducts an audit of your business.

Q - What is the likelihood of my business being audited by the state after July 1, 2010?
A - Your chances of being audited are higher if you are part of an industry that is known to employ large immigrant worker populations. This would include hotels, restaurants, landscapers, golf courses, construction, certain manufacturing sectors, etc. LLR’s Office of Immigrant Worker Compliance will also schedule audits of employers in the general employer population of the state.

Q - I’m told there are some excellent forged driver’s licenses for sale across our state. What happens to me if one slips by me, and I hire an illegal alien based on a phony driver’s license?
A - Employers are not expected to be document experts. You are expected to do what a reasonable person would do in accepting a driver’s license. Examine it carefully to see if it appears to be legitimate. Compare it to your own. If it looks legitimate, you can employ the worker. Should the state audit you at a future state and determine the worker’s driver license is fraudulent, you will be o’kay if the evidence suggests that you acted in good faith in hiring the worker. You would not be acting in good faith if the card is clearly a poor reproduction.

Q - Does the South Carolina Department of Labor, Licensing and Regulation audit I-9s?
A - No. The I-9 is a federal document, and only the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), has the authority to audit I-9s. During an audit to determine compliance with the South Carolina immigration law, auditors will ask to see evidence that employees hired after July 1, 2009 or July 1, 2010 (depending on the size of the employer) were verified according to state law.

Q - How long do the names of employers cited for violation of the “Illegal Aliens and Private Employment” law stay posted on the Department of LLR’s web site?
A - The names are posted indefinitely. The statute is silent on when, if ever, they are to be removed.

Q - Does the employer have to retain copies of driver’s licenses or E-verify confirmations in the event the business is audited by LLR?
A - South Carolina Department of Labor, Licensing and Regulation rules and regulations (71-10003. Records Retention) state: “Employers must retain records of verification of immigration status for all employees for three (3) years after the date they hire an employee. These records forms can be retained in paper, microfilm, microfiche, or electronically.”

Q - How does the new state immigration law affect me as an employer?
A - All employers in South Carolina beginning July 1, 2009 are imputed a South Carolina employment license which permits an employer to hire an employee. An employer may not employ a person unless his South Carolina employment license is in effect and is not suspended or revoked. All employers within five business days after employing a new employee must either check the new hire's credentials through the U.S. Department of Homeland Security's online database called E-verify or hire workers with a driver's license/ID card from South Carolina or another state where the licensing requirements are at least as strict as those in South Carolina. Employers caught not checking their workers can be fined between $100 and $1,000 per worker. If an investigation finds the employer knowingly and/or intentionally hired an illegal immigrant, the business’ employment license can be suspended up to 30 days on the first offense and revoked on a third occurrence.

Q - When does the law on "Illegal aliens and private employment" take effect?
A - Effective July 1, 2010, every employer in South Carolina must comply with the law.

Q - I operate a business where I assist individuals with immigration issues. How does the new law affect me?
A - Persons providing immigration assistance services must be registered with the South Carolina Department of Labor, Licensing and Regulation (LLR) effective June 4, 2008. The law defines immigration assistance services, establishes penalties for violation of the Act, and requires the Director of LLR to develop regulations to implement, administer and enforce the law. Check our web site under Immigration Assistance Services for more information on licensure and an application form.

Q - I operate a convenience store where I employee two workers. If I’m found to have knowingly hired an illegal worker, I understand that I could lose my imputed license and the ability to hire workers under the "Illegal Aliens and Private Employment" section of the new immigration law. Having no employees, can my wife and I still open the store for business and run it ourselves?
A - The business could lose its license as an employer. If the business is a sole proprietorship, the owner is not its employee. If the business is a partnership between you and your wife, neither of you are employees. If the business is a corporation, an S-corporation, or a limited liability corporation, you are its employee (even if you own 100% of the stock). Please consult with your tax advisors and attorney concerning how your business organization is affected by the new law.

Q - I run a construction company. Suppose I hire a new employee and successfully clear him through E-verify. After completion of a major project, he quits the company. Six months later, he comes back to us seeking a job. Do I have to clear him again through E-verify?
A - It doesn't appear that the South Carolina statute cares whether the employer cleared the employee at the time of "hire" or six months earlier. The key would be in the rules for participation in E-verify. We are told that E-verify is very particular that employers agree to check ALL hires and skip none. Please consult your attorney, accountant or the U.S. Department of Homeland Security’s E-verify office.

Q - I am a construction contractor. Frequently, I hire subcontractors to perform work on construction sites. Under the new state immigration law, will I be responsible for verifying the legal status of the subcontractor’s workers, or is that the responsibility of the subcontractor?
A - “The Illegal Aliens and Private Employment” Act applies to employers and their own employees. If there is a true independent contractor relationship between two business entities, then the contractor would not be responsible for subcontractor compliance. Unfortunately, we are all familiar with the contractor who exercises so much control over the workers that the law considers him to be their employer even though there is a nominal subcontractor. Each contractor should work with his/her lawyer (or accountant) to be certain that the subcontracts are valid and will be recognized by the courts. When the contract is to perform work on a government site, the “Unauthorized Aliens and Public Employment” statute places much clearer responsibilities on the contractor to assure that its subcontractors register and participate in federal verification. See Section 8-14-20 of the South Carolina Illegal Immigration Reform Act.

Q - When I start verifying my employees, if I find one does not have accurate documentation do I have to fire them that day or do I have a grace period that I can give them so they can get their documents in order? If I come across false documentation, am I obligated to report the incident and employee/applicant?
A - Under Section 41-8-20(E) of the law, “Private employers who elect to verify a new employee's work authorization [using E-verify] shall provisionally employ a new employee until his work authorization has been verified." The other common alternative for verification, a valid South Carolina Driver’s License or Identification Card, means that someone else reliable has already checked and the documents are in order, so there should be no need for a grace period. There appear to be no state specific reporting requirements.

Q - I want to hire a college student with a New York driver’s license. I see that a New York driver’s license is not on the list of acceptable states for verifying a new hire. I don’t want to sign up for E-verify. How can I hire the student?
A - With this scenario, your only option would be to have the student demonstrate that he/she qualifies for a South Carolina driver’s license/identification card. Or, you could change your mind and enroll in E-verify. Otherwise, you can’t employ him/her according to the state immigration law.