On June 4, 2008, Governor Mark Sanford signed the South Carolina Illegal Immigration Reform Act into law. The goal of this legislation, which has been touted as the toughest in the United States, is to ensure that illegal immigrants are not working in South Carolina.
Beginning in 2009, employers must register and participate in the E-Verify Program maintained and operated by the United States Department of Homeland Security and the Social Security Administration. Employers must then verify the legal status of their workers by using: (1) E-Verify, (2) a valid South Carolina driver’s license or identification card, or (3) a driver’s license or identification card from another state where the license requirements are at least as strict as in South Carolina. These verification methods are supposed to be more effective than the federal I-9 verification forms.
In the event of violation of the new immigration law, private employers may face fines in the amount of $100 to $1000 or a suspension or revocation of their authority to do business in South Carolina. In the event of a suspension or revocation, an employer will be prohibited from employing any persons in the state. In addition, if an employee authorized to work in the United States is discharged by his or her employer and replaced by an employee who is an unauthorized alien, the employer may be sued for wrongful termination. The Director of the Department of Labor, Licensing and Regulation will be developing a statewide random auditing program to inspect private employers for compliance. Though the law took effect on June 4, the verification requirements will not be phased in until next year.
This new law will surely face legal challenges. Immigration is considered a power limited to the federal government. The South Carolina law pushes the boundaries of enforcement authority retained by state governments. As a similar law just enacted in Virginia points out, employers may have difficulties navigating a patchwork of state quasi-immigration laws. Also, the E-Verify system used in the new law is generally considered unreliable, and has been rejected by federal courts as the basis for employer verification requirements. South Carolina employers should monitor regulatory and judicial developments to make sure they are in position to comply with any provisions that become effective next year.