E-Verify offenders receive a break in South Carolina

The Greenville News reports that 16 businesses have been cited for violations under South Carolina’s E-Verify law, but almost all have been waived under the law’s provision for first-time offenders. As previously reported, the South Carolina Illegal Immigration Reform Act requires employers with 100 employees or more to participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). The law will expand to include all South Carolina employers in July 2010.

According to yesterday’s article, the SC Department of Labor has been checking up on organizations since July, citing approximately 16 businesses out of 600. The violations spotted are across the map: ranging from a company not having any verification system at all, to not verifying all of the new hires in the required time period, to accepting non-approved documents as proof of employment eligibility.

The citations totaled more than $60,000 in penalties, almost all of which were waived. Lawmakers predict that the state will eventually collect sufficient funds for enforcement from repeat offenders and other willful violators.

E-Verify law tough on South Carolina Employers

According to a recent article in the Beaufort Gazette, many employers in South Carolina are struggling to comply with the South Carolina Illegal Immigration Reform Act, finding the requirements both time-consuming and costly. Under the current law, all South Carolina employers with 100 employees or more must either participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). The law will expand to include all employers in July 2010.

The Costs: A restaurant owner estimates he’ll need an office worker to devote three hours per week overseeing the E-Verify issue, which could cost him $5,000 to $6,000 per year. He recently spent $500 training a new employee on the law, only to see that person leave.

The Confusion: state law and federal guidelines don’t always mix well. In this case, the state law says that employers can either use E-Verify OR demand that new hires possess a South Carolina (or similarly strict) driver’s license. The problem is that many employers think they can go back and forth between these methods, whereas the E-Verify MOU dictates that once you start using E-Verify at a particular site, you must use it for all new hires at that site. There are also differing time deadlines: the state law gives employers 5 days, whereas E-Verify requires verification to be initiated within 3 days.

The Consequences: according to the article, state auditors have been visiting employers in South Carolina unannounced and asking for documents that are not covered under the law. This practice is compounded by certain local ordinances which allow county officials to conduct random I-9 audits and impose significant penalties including the loss of an employer’s business license.

State E-Verify Provisions Going into Effect on July 1

On July 1, 2009, several state E-Verify mandates will go into effect, affecting employers in Georgia, Mississippi, South Carolina and Utah. Most of these laws were enacted some time ago, and are being implemented in stages as indicated below. Here is a quick summary of these new state requirements as of July 1, 2009:

Georgia: all state contractors and subcontractors must use E-Verify if the contract is for the physical performance of services within the state of Georgia. Previously, only state contractors with 100 or more employees were impacted. More information can be found here.

Mississippi: all employers with 100 employees or more must participate in E-Verify. This law will expand to include employers with 30 or more employees in July 2010 and all employers in July 2011. The full text of the law can be found here.

South Carolina: all employers with 100 employees or more must either participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). This law will expand to include all employers in July 2010. More information is available through this link.

Utah: state contractors and subcontractors must use E-Verify or the Social Security Number Verification Service (SSNVS) if the contract is for the physical performance of services within the state of Utah. The full text of the law can be found here.

E-Verify Alert: Missouri and South Carolina laws to take effect on January 1, 2009

As the New Year approaches, it’s important to re-visit some of the state-specific E-Verify legislation passed in 2008 that have upcoming deadlines and implementation dates in 2009. In particular, both Missouri and South Carolina have E-Verify laws which are set to take effect this week, starting January 1, 2009.

Missouri’s E-Verify law applies to employers that receive state contracts or grants in excess of $5,000, or any business entity receiving a state-administered or subsidized tax credit, tax abatement, or loan from the State of Missouri. Under the law, these employers must enroll and participate in E-Verify and also document their enrollment by sworn affidavit.  Employers who violate these requirements can face suspension of their business permits, licenses, or exemptions. The law stipulates, however, that employers participating in E-Verify will have an affirmative defense to any charges that they have knowingly employed an unauthorized foreign national.

South Carolina’s E-Verify law is being implemented in stages, and the first phase going into effect this week will apply to all contractors and subcontractors with 500 or more employees that seek to enter into state contracts for services valued in excess of $25,000 or $15,000, if the contract is with a political subdivision. Under the law, these employers will be required to either participate in E-Verify or to restrict their hiring to only those individuals who possess or qualify for a South Carolina driver’s license, or other state license with similarly strict requirements.

The next phase for South Carolina will take place on July 1, 2009, when the law will take effect for mid-sized contractors (those with 100 or more employees) as well as mid-sized private employers (those with 100 or more employees). The last and final phase will be July 1, 2010, at which time all employers (private and public) will be covered. As with Missouri, potential penalties for violations can include fines and suspension of business licenses.

State-specific E-Verify laws are detailed and complex. Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website to help you to manage these new requirements.

Congress Has Until November to Re-Authorize E-Verify But The Program Is Expected to Continue

The current Congressional authorization for the E-Verify electronic employment eligibility verification for employees expires on November 1, 2008. It seems very likely that Congress will either re-authorize the program or, if it misses the November deadline, will continue to fund E-Verify until a new re-authorizing legislation is passed.  The E-Verify program is expected to continue after November 1.

 

The U.S. House of Representatives has already passed a bill by a landslide vote of (407-2), re-authorizing E-Verify for another five years. The House bill does not make any substantive changes in the current program and keeps participation voluntary for U.S. employers. The action is now in the U.S. Senate, where Senators have introduced various immigration-related amendments as part of the E-Verify re-authorization.

 

A number of Senators have signed a letter to Senate Majority Leader Harry Reid urging a clean vote on extending E-Verify rather than trying to change the program’s scope at this time, which — they fear — would delay re-authorization.

 

According to a press release from his Senate office, U.S. Senator Lindsey Graham (R-South Carolina) “noted that the comprehensive immigration reform bill Congress debated last year contained an even stronger version of E-Verify for employment verification and mandated all business use the system.  However, Graham noted that even a watered-down version of electronic employment verification, like E-Verify, is better than none at all.”

 

This means that participation in E-Verify would remain largely voluntary for employers, even though Senator Graham’s home state of South Carolina has passed into law legislation mandating the use of E-Verify for state government contractors and private employers in coming years. Other states have also passed or are considering similar laws. The Bush Administration has proposed that all current and future Federal contractors would also be required to use E-Verify. The implementation of this Federal rule is being debated and may be challenged in court.

 

“Congress is running out of time to reauthorize and even enhance E-Verify,” wrote Graham.  “The number of employers relying on the program to hire legal workers is likely to grow.  Small businesses and companies that utilize it need to be able to know that Congress is not going to let this program die.”

 

“Both sides of the aisle would like to see reforms to the electronic employment verification program,” said Graham. “Ultimately, we would prefer to pass a bill requiring mandatory participation in the program. Since there is very little time left in this session, we urge you to support a straight reauthorization of E-Verify.  Extending the program will keep employers accountable while giving them the tools needed to abide by the law in their hiring practices.”

 

The letter was also signed by Senators Charles Grassley (R-Iowa), Jon Kyl (R-Arizona), Arlen Specter (R-Pennsylvania), Johnny Isakson (R-Georgia), David Vitter (R-Louisiana), Saxby Chambliss (R-Georgia), Jim DeMint (R-South Carolina), Jeff Sessions (R-Alabama), James Inhofe (R-Oklahoma), John Ensign (R-Nevada), Tom Coburn (R-Oklahoma), and Wayne Allard (R-Colorado).

 

 

 

Posted by Tracker I-9™ team.

 

Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website.

 

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.