E-verify mandatory in SC on January 1

As someone in the HR field in the construction industry, immigration issues are nothing new. To try to keep ahead of the curve, as well as help refute the notion that we provided jobs to illegal immigrants, my company embraced the use of E-verify two years back and tasked me with verifying the company's new hires.

We've obviously done a good job of this as we passed a random compliance audit by SC LLR last year.

Not only that, but I've seen the system flag people. In all but one case, they chose not to contest being flagged by the system.

Thus far, the use of this system, which verifies employment eligibility against several federal government databases was voluntary. Employers could continue obtaining documents which 1) established identity and 2) eligibility to work in the United States and completing the I-9 form. Without E-verify, employers were required to accept documents at face value, even if they suspected those documents were fake.

Come January 1, that will change as all South Carolina employers will be required to use E-verify for new hires. According to the SC LLR website:

Amendments to the “South Carolina Illegal Immigration and Reform Act” were signed into law by Governor Nikki Haley on June 27, 2011. The amended law requires all employers to enroll in the U.S. Department of Homeland Security’s E-Verify system beginning January 1, 2012 and to verify the legal status of all new employees through E-Verify within three business days. Failure to enroll in and use E-Verify to verify new hires will result in probation for the employer or suspension/revocation of the employer’s business licenses.

Verification Requirements
In addition to completing and maintaining the federal employment eligibility verification form, more commonly known as the Form I-9, all South Carolina employers must within three business days after employing a new employee:
1. Verify the employee’s work authorization through the E-Verify federal work authorization program administered by the U.S. Department of Homeland Security.
2. Employers may no longer confirm a new employee’s employment authorization with a driver’s license or state identification card

There have been some questions about the ability of states to mandate the use of E-verify, which is a voluntary program at the federal level. In May, the U.S. Supreme Court ruled 5-3 in Chamber of Commerce of the United States v. Whiting that State of Arizona, which had passed a law mandating the use of E-verify, could indeed make the use of this system, which is offered as a voluntary service by the feds, mandatory.

Thus the South Carolina legislation which was enacted in June is valid and becomes binding upon employers.

The consequences for employers who violate South Carolina's laws are stiff. According to the SC LLR website:
For a first occurrence by a private employer, after July 1, 2012, of failure to verify a new hire through the E-Verify federal work authorization program within three business days, the Department of LLR must place the employer on probation for a period of one year, during which time the private employer must submit quarterly reports to the agency demonstrating compliance with the law. A subsequent violation within three years of the law’s verification requirements must result in the suspension of the private employer’s licenses for at least 10 days but not more than 30 days.

A private employer who knowingly or intentionally employs an unauthorized alien must have his licenses suspended by the Department of LLR on a first occurrence for at least 10 days but not more than 30 days.

Agree or disagree, using E-verify is the law for employers after the end of this year, so if you're an HR person, or know someone who is, now is the time to get ready for this change.

E-verify is a free service and it keeps you compliant with both state and federal laws. Not only that, but it takes just minutes to use. If you're responsible for the hiring in your organization and aren't familiar with it, contact me and I'll be glad to help.

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