South Carolina Office of Immigrant Worker Compliance
FAQs
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 Social Security number through the U.S. Department of Homeland Security's online database called E–verify or hire workers with a driver's license from South Carolina or another state where the license 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, and if an investigation finds they knowingly hired an illegal immigrant, their business can be temporarily shut down, up to 30 days on first offense and revoked if caught a third time.
Q – When does the law on "Illegal aliens and private employment" take effect?
A – The deadline for compliance by businesses employing 100 or more workers is July 1, 2009. Businesses with fewer than 100 employees have until July 1, 2010, to comply with the new law.
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. However, under the new law, the agency can not accept and investigate complaints or audit companies until July 1, 2009 (businesses employing 100 or more workers) and July 1, 2010 (businesses employing less than 100 workers).
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. The agency is in the process of drafting regulations on registration. Persons providing immigration assistance services are encouraged to send LLR their contact information so information about the new law can be made available to them. immigrantinfo@llr.sc.gov
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 or the South Carolina Employment Security Commission.
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 – I employ 150 workers. If some of the 150 workers on the payroll today are illegal aliens and not authorized to work in this country, can I be fined or sanctioned after July 1, 2009 when LLR begins enforcing the law? Or, are all of my workers on the payroll before July 1, 2009 grandfathered in?
A – No one is grandfathered. There will be no sanctions for failure to check credentials using the statutory process, if the credentials were checked prior to July 1, 2009. However, one can still be sanctioned for knowingly employing workers who are not authorized.
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.