South Carolina Lawyer


SC Lawyer, Nov. 2005, #3.


South Carolina LawyerNovember 2005TEN BIGGEST MYTHS ABOUT IMMIGRANTS AND THE LAW IN SOUTH CAROLINAMyth IUndocumented workers are not protected by South Carolina or United States laws.


Undocumented workers are protected, without regard to immigration status, by laws affecting wages, working conditions, on-the-job injuries and discrimination.

The South Carolina Payment of Wages Act guarantees triple damages and attorneys' fees for unpaid wages. S.C. CODE ANN. § 41-10-10 The Federal Minimum Wage law (FLSA) guarantees workers $5.15 per hour and overtime (if covered and not otherwise exempt). 29 U.S.C. § 201 et seq. The South Carolina Workers' Compensation Act covers on-the-job injuries. S.C. CODE ANN. § 42-1-10 Agricultural workers are covered by the Migrant and Seasonal Agricultural Worker Protection Act. This guarantees written disclosures at recruitment, minimal housing conditions, written pay statements and more. 29 U.S.C. §1801 et seq. Undocumented workers are covered by the National Labor Relations Act (NLRA). Undocumented workers therefore are able to participate in organizing, joining or voting for a union. However, they are limited from obtaining back pay under the NLRA. 29 U.S.C. §152(3); and Sure-Tan Inc., et al. v. NLRB 672 F.2d 592 (1984) Workers are protected against job discrimination and sexual harassment without regard to their immigration status. Title 7, Civil Rights Act of 1964.

Myth II Immigrants are prohibited from receiving any type of public benefits.

TruthImmigrants can receive different types of assistance for themselves and/or for their U.S. citizen children.

Immigrants may be able to receive food stamps, Temporary Assistance For Needy Families (TANF), Medicaid and Supplemental Security Income (SSI). The immigrant would have to meet income guidelines and qualify based on legal immigration status. Note, though, that an undocumented immigrant can apply for the above services for a U.S. citizen child. The U.S. citizen child or children are eligible for the benefit as long as the parent meets income and other guidelines. 42 C.F.R. Part 435.406 and Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) - Public Law No. 104 §400 et seq. All immigrants can receive emergency Medicaid if they meet certain rules. Emergency Medicaid covers conditions that put one's health or life in serious danger. 42 C.F.R. Part 435.406 and Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) - Public Law No. 104 §400 et seq. All immigrants can get help from shelters and mental illness or drug and alcohol services. 8 U.S.C. §1611 All immigrants can go to the emergency room for treatment. 42 U.S.C. §1395 dd All immigrants can receive the following (as long as other guidelines are met where required): Public health programs that give immunizations or provide testing and treatment for communicable disease symptoms. They can also receive services from community health clinics. PRWORA § 401 or 8 U.S.C. §1611 Women Infants Children (WIC) food benefits. 42 U.S.C. §1786. WIC provides pregnant women and children up to age five with supplemental foods.Id. School breakfast and lunch programs. PRWORA §403, 742 or 8 U.S.C. §1613,1615 Head Start.Id. Homeless shelters and soup kitchens. PRWORA § 401 or 8 U.S.C. §1611 Emergency shelter/food/clothing. Id. Soup kitchens and Meals on Wheels. Id. Child and Adult Protective Services from DSS. PRWORA § 403, 742 or 8 U.S.C. §1613,1615 Police, fire, ambulance, public transportation (like buses) and sanitation services. PRWORA § 401 or 8 U.S.C. §1611 Other services necessary to protect life or safety that are not conditioned on the individual's income or resources. Id.

But, if immigrants receive benefits, won't that make them a "public charge" (i.e. someone who depends on the government for income)? If the government decides that someone is a public charge, they may be stopped from getting a green card or entering the United States. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Pub L. 104-208, 1996 or 8 U.S.C. §1251

An immigrant could be a public charge if he or she receives TANF or SSI. IIRIRA An immigrant could...

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