A little over a year ago, South Carolina joined a growing number of states enacting immigration legislation ostensibly to address the situation of large populations of undocumented immigrants living and working in the state.  Unfortunately, there is a great deal of misinformation and misunderstanding regarding the Act's requirements (including, for example, the false rumor that all employers must use the federal verification system, E-verify, to ensure their employees' work authorization).  In an effort to clarify the requirements under the new law and ease some concerns, we provide the following summary of a few of the key provisions of the Act in a more easily digestible format.

The timetable for implementation of the Act is the following:

Public employers¹:

• January 1, 2009

Private employers who contract with public employers:

• = 500 employees – January 1, 2009
• 100 – 499 employees – July 1, 2009
• < 100 employees – January 1, 2010

Private employers:

• = 100 employees – July 1, 2009
• < 100 employees – July 1, 2010

Under the Act, only public employers are required to use E-verify to verify the work authorization of new employees.  Public employers in turn may only contract with companies and individuals who either (1) use E-verify to ensure new employees are authorized to work in the U.S. or (2) hire only workers who possess or are eligible to obtain (i) a valid South Carolina driver's license or identification card or (ii) a driver's license or identification card of another state where the license requirements are at least as strict as those in South Carolina.²

The requirements for private employers are identical to those for employers who contract with public employers.

It is imperative that employers distinguish between the federal verification process in completing the Form I-9 and any state requirements.  In particular, employers must not require new employees to produce any particular document for purposes of the I-9 but must instead allow the employee to select which documents he or she will present from among the List A or Lists B and C documents.  The state requirements must be handled separately.

New Federal Law

Those employers who contract or subcontract with the federal government, however, now do not have the option not to use E-verify.  Executive Order 12989, which went into effect on September 8, 2009, mandates that federal government agencies require those with whom the agencies have contracts and/or subcontracts, which meet certain minimum monetary amounts and/or time periods, to use E-verify to confirm the employment eligibility of their workers.

Whether employers opt to use the E-verify system or are required to do so by the newly effective executive order, there are several key requirements to bear in mind.  These include the following:

• Employers who decide to use E-verify must use this system consistently for all new hires.
• Employers must not use E-verify to re-verify current employees (except where required by the federal contractor provision).
• Employers must display the following in an area that is clearly visible to current and prospective employees:  (1) a notice informing current and prospective employees about the employer's participation in E-Verify and (2) a notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices detailing E-Verify's anti-discrimination policy.
• Employers still must complete Form I-9 and retain a copy of the form together with the verification number recorded on the Form I-9 or a printout of the computer screen containing the verification number (if using E-Verify).
• Employers still must examine the documents provided by the employee for the Form I-9 and determine whether these documents reasonably appear to be genuine.  Certain documents must be copied pursuant to the E-Verify requirements.
• Employers must initiate the verification process within three (3) business days of the employee's start date.  There is a phase-in period for employers subject to the federal contractor provision.
• Employers may initiate an E-Verify inquiry before an employee's start date, but the employer may not pre-screen applicants or delay the employee's training or start date because of either:  (1) a tentative non-confirmation or (2) a delay in receiving the confirmation of the employee's authorization.
• In the event the employer receives a tentative non-confirmation notice, the employer must provide the employee with written notification of the non-confirmation notice and allow the employee an opportunity to appeal the notice.  The employer may not take any adverse action against the employee while awaiting a response from the Department of Homeland Security or the Social Security Administration.

If you have any questions or concerns regarding employer requirements under the Act or with regard to E-verify, please do not hesitate to contact Laura Burton in our Greensboro office at (336) 378-5566 or Francesca Mosteller in our Greenville office at (864) 240-2415.

¹ "'Public employer' means every department, agency, or instrumentality of the State or a political subdivision of the State." § 8-14-10(A)(5). "Political subdivision" is not defined under § 8-14-10, and the Act does not define it consistently throughout its provisions. However, "political subdivision" most likely includes governmental entities such as counties and municipalities.

² The South Carolina Department of Motor Vehicles (SCDMV) determines whether a state's license requirements are as strict as South Carolina's. § 8-14-20(B)(2)(c). The SCDMV publishes a list of states that have license requirements that are as strict as South Carolina's on its website, http://www.scdmvonline.com/DMVNew/default.aspx?n=sc_illegal_immigration_reform_act.