South Carolina Mini E-Verify Law Revised Enforcement Procedures
The South Carolina Department of Labor, Licensing and Regulation (LLR) has revised its enforcement procedures in connection with the private employment provisions of the South Carolina Illegal Immigration Reform Act of 2008, in response to business’ concerns over disruptions to daily operations by unannounced site visits, requests for documents including I-9 forms and requests to interview employees.
Advance Notice of Inspections. Like federal inspections of employer I-9 forms, LLR is now providing several days notice prior to conducting an audit. This advance notice gives employers the opportunity to make administrative arrangements ahead of time to minimize disruption to business operations and promotes efficiency in the process by giving employers the time to make relevant documents available for inspection.
No Inspection of I-9 Documents. In compliance with federal regulations pertaining to employment eligibility verification, LLR is no longer requesting to inspect I-9 forms and supporting documentation.
New Compliance Affirmation Form. In lieu of certain investigation practices, LLR has implemented a new “Affirmation of Legal Work Status” form to be signed by employers or their authorized representatives affirming that the employer is not knowingly or intentionally employing an unauthorized alien.
DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.
Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.
I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".
Employer liability extends to circumstantial evidence and “constructive knowledge”. It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.
"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.
Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.
Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.