South Carolina Immigration Compliance and Enforcement March 5-7, 2013 David Dubberly Certified Specialist in Employment and Labor Law
South Carolina Illegal Immigration Reform Act (as amended in 2011) Mandated enrollment in E-Verify as of January 1, 2012 Requires use of E-Verify to confirm work authorization For all new employees Within 3 days of hire Prohibits knowing or intentional employment of unauthorized alien
Enforcement Enforced by SC Dept. of Labor, Licensing, and Regulation Random audits Complaint investigations Inspection initiated by LLR for good cause
Contractor Requirements Maintain the contact phone numbers of all subcontractors and sub-subcontractors performing services for contractor Provide such contact information to LLR pursuant to audit or investigation
Penalties Penalties for failing to E-Verify all new hires: 1 st violation: probation for 1 year must submit quarterly reports confirming compliance Subsequent violation within 3 years: suspension of licenses to do business and employ workers in SC for 10-30 days Penalties for knowing or intentional employment: 1 st violation: suspension of licenses to do business for 10-30 days; reinstatement process 2 nd : 30-60 days; reinstatement process 3 rd : licenses revoked; more onerous reinstatement process
Penalties If employer engages in business or employs workers during suspension, licenses will be revoked for 5 years LLR will notify applicable licensing agencies if employer s licenses must be suspended or revoked If employer is disciplined under law, it s name will be published on LLR website
E-Verify System queries SSA and DHS databases to verify information contained on I-9 SSA first verifies name, SSN, and date of birth SSA also confirms citizenship if worker stated he/she is a U.S. citizen USCIS verifies noncitizen s employment eligibility Usually takes 3 seconds
Other States Requiring E-Verify Alabama Arizona Colorado Florida Georgia Idaho Indiana Louisiana Michigan Mississippi Missouri Nebraska North Carolina Oklahoma Pennsylvania Tennessee Utah Virginia West Virginia
E-Verify Rules Do not E-Verify existing employees Exception: federal contractor rules Any List B document must contain photo If employee presents U.S. Passport, Passport Card, Permanent Resident Card (green card), or Employment Authorization Document as List A document, employer must keep copy and attach to I-9 file
Results Initial verification results Employment authorized employee authorized to work SSA Tentative Non-Confirmation information mismatch with SSA records DHS verification in process DHS checking additional data sources Responds within 24 hours to 3 federal work days with either employment authorized or DHS TNC
Results If employment authorized, print screen with Transaction # and attach to employee s I-9 or record number on form If TNC Print notice and review with employee If employee chooses to contest, see next slides Do not take adverse action without independent knowledge employee lacks work authorization If employee chooses not to contest, considered Final Non-confirmation and may terminate employment and close
Contesting SSA TNC Provide SSA referral letter to employee Print, sign, and date Review and explain steps to employee Have employee sign Employee has 8 federal workdays to visit an SSA field office to begin resolving TNC Check E-Verify for updates SSA has 10 federal workdays to update case result in E-Verify Employment Authorized SSA Final Non-confirmation SSA Case in Continuance DHS Verification in Process Review and Update Employee Data
Contesting DHS TNC Provide DHS referral letter to employee Print, sign, and date Review and explain steps to employee Have employee sign Employee has 8 federal workdays to contact DHS beginning when case is referred to DHS in E-Verify Check E-Verify for updates After 10 federal workdays E-Verify provides case results Employment Authorized DHS Final Non-confirmation DHS Case in Continuance DHS No Show
Penalties If employer continues to employ worker after Final Non-confirmation: Must inform DHS via E-Verify Monetary penalty up to $1,100 for failure to notify Rebuttable presumption employer knowingly employed unauthorized alien
Photo Screening Tool Helps ensure validity of certain List A documents If photo is match, select Yes If photo is not match, select No and E- Verify will return TNC; employer must follow TNC procedures
Records Keep separate from other HR documents Separate binders for federal and state records Federal (separate by current and terminated employees): I-9 forms with E-Verify verification record attached or number recorded on form and copies of certain List A documents Purge after later of 3 years after hire or 1 year after termination
Records SC: E-Verify verification record Test recordkeeping with random audits
Download, print and post 2 posters in English and Spanish (see pictures) Required Posters
Questions/Comments? David Dubberly 803-253-8281 ddubberly@nexsenpruet.com or visit http://www.nexsenpruet.com/practices-area-45.html