SC Lawyer, November 2008, #1. New Immigration Act for S.C. Employers: What Are The Requirements and Is The Act Constitutional?.

• Author: By Christian E. Boesl and Charles L. Appleby IV

South Carolina Lawyer

2008.

SC Lawyer, November 2008, #1.

New Immigration Act for S.C. Employers: What Are The Requirements and Is The Act Constitutional?

South Carolina LawyerNovember 2008New Immigration Act for S.C. Employers: What Are The Requirements and Is The Act Constitutional?By Christian E. Boesl and Charles L. Appleby IVIntroduction

The debate on how to handle immigration is nothing new in the United States. chart. The question is whether it is a federal or state issue. Traditionally, immigration has always been a federal issue; however, in recent years and particularly after the demise of the Federal Comprehensive Immigration Reform Act of 2007, numerous states, including South Carolina, have taken matters into their own hands. Comprehensive Immigration Reform Act of 2007 a.k.a. Secure Borders, Economic Opportunity and Immigration Reform Act of 2007, S. 1348, 110th Cong. (2007).

South Carolina's Illegal Immigration Reform Act, which goes into effect in less than a year, is a multi-issue act relating to employment, law enforcement, public benefits, ID/licenses, legal services and education. South Carolina Illegal Immigration Reform Act, H.B. 4400 (2008). This article will discuss the requirements for public and private employers, how one method of compliance may place employers at risk of federal discrimination charges, and current litigation surrounding similar state laws around the country.

According to the National Council of State Legislatures (NCSL), state laws related to immigration have increased dramatically in recent years: * In 2005, 300 bills were introduced and 38 laws were enacted. * In 2006, activity doubled: 570 bills were introduced and 84 laws were enacted. * In 2007, activity tripled: 1,562 bills were introduced and 240 laws were enacted.

State Immigration-Related Legislation for 2008 Nears 2007 Levels, available at http://www.ncsl.org/programs/press/2008/pr0708immigrationlegislation.htm (July 24, 2008). The trend shows no signs of slowing as 1,267 bills relating to immigration were introduced in state legislatures across the country as of July 2008, with at least 175 of those bills becoming law in 39 states. Id. In 2008, as in recent years, the top three areas of interest are identification and driver's licenses (203 bills introduced - 30 laws enacted), employment (198 bills introduced - 18 laws enacted) and law enforcement (214 bills introduced - 10 laws enacted). Id.

South Carolina Illegal Immigration Reform Act

The South Carolina Illegal Immigration Reform Act (South Carolina Act) was introduced in the House on January 9, 2008, passed by the General Assembly on May 29, 2008, and signed by Gov. Sanford on June 4, 2008. South Carolina Illegal Immigration Reform Act, H.B. 4400 (2008). It affects both private and public employers in the state. The South Carolina Act does not affect an employer's obligation to complete an Employment Eligibility Verification Form, also known as a "Form I-9," but instead includes additional state requirements for verifying a worker's eligibility. Id.

Requirements: private employers

On July 1, 2009, all private employers in South Carolina must have a valid state employment license in order to hire a new employee. S.C. Code Ann. § 41-8-20(A) (for a definition of private employer, see §§ 41-8-10(E); 12-8-10(3),(4); 12-8-520). No action is required to obtain this license as the state will automatically "impute" a license to all private employers in July 2009. Id. However, private employers must comply with the provisions of the Act to ensure their license remains valid. (See the Compliance Schedule below for specific dates.)

In addition to other requirements, the South Carolina Act prohibits a private employer from knowingly or intentionally employing an unauthorized alien and requires private employers to verify the work authorization of all new hires. §§ 41-8-30, 41-8-20; see also, S.C. Code Ann. § 12-6-1175 (disallowing a business expense deduction for an unauthorized worker); § 12-8-595 (mandating withholding a seven percent income tax if the employee does not provide a SSN or ITIN). A private employer has two options for verifying new hires:

(1) Register and participate in the federal work authorization program (E-Verify) and verify the work authorization of every new employee within five business days after employing a new employee; or (2) Employ only workers who, at the time of employment: a. possess a valid South Carolina driver's license or identification card, b. are eligible to obtain a South Carolina driver's license or identification card by providing proof of name, social security number and date and place of birth, or c. possess a valid driver's license or identification card from another state deemed by the executive director of the Department of Motor Vehicles to have requirements at least as strict as those in South Carolina.

S.C. Code Ann. § 41-8-20(B)(C). A private employer must choose either option one or option two but cannot use both. E-Verify User Manual, U.S. Citizenship and Immigration Services, 2.2 Preventing Discrimination: The E-Verify Rules of Use, available at http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf (April 2008).

If an employer utilizes option one, E-Verify, in good faith, the employer is presumed to have complied with the South Carolina Act. Id. § 41-8-40. However, if an employer chooses to participate in E-Verify, the employer must use it with all new hires and satisfy additional requirements. E-Verify User Manual, supra note 1. If an employer utilizes option two and requests a South Carolina driver's license or the equivalent, the employer risks penalties for possible federal discrimination charges. See, Requirements: Option 2 - Driver's License/ID or Equivalent below. In any event, the employer must not knowingly or intentionally employ an unauthorized alien and must verify new hires through either option one or option two.

Requirements: public employers

Every department, agency or instrumentality of the state is considered a public employer. S.C. Code Ann. § 8-14-10(A)(5). The South Carolina Act requires all public employers to verify new hires through E-Verify. Id. § 8-14-20(A). In addition, public employers may not enter a service contract with a contractor, subcontractor or sub-subcontract unless the contractor agrees to verify its employees through either option one or two as stated above. Id. § 8-14-20(B). Public employers are in compliance with the new law if they obtain a written statement from the contractor certifying the contractor will comply with the requirements of the chapter and agree to provide to the public employer any documentation required to establish either: * The applicability of the chapter to the contractor, subcontractor and sub-subcontractor; or * Compliance with the chapter by the contractor and any subcontractor or sub-subcontractor.

Id. § 8-14-40. A public employer or contractor who complies with the requirements in good faith is not subject to sanctions or civil or administrative action for employing an individual who is not authorized to work in the United States. Id. § 8-14-50.

Requirements: Option 1 - E-Verify

The Basic Pilot program, also referred to as E-Verify, was established by the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA). 8 U.S.C.A. §1324a. It started in California, Florida, Illinois, New York and Texas in 1997. The Basic Pilot Program Extension and Expansion Act of 2003 amended IIRIRA to make the program available to employers in all 50 states, extended its authorization until November 2008 and placed the Secretary of Homeland Security in charge of the program. See Basic Pilot Program Extension and Expansion Act of 2003, Public Law 108-156. However, November 2008 has arrived, and without any congressional action, the E-Verify system will expire. Id. Should the system expire, South Carolina and many states that have incorporated E-Verify into their immigration laws will be forced to revisit these laws.

Both of South Carolina's senators, Lindsey Graham and Jim DeMint, support E-Verify and have signed a letter...