Photo by: Leslie Cantu/Journal Scene

Jim Knight gave a presentation to local business owners on the state’s new illegal immigration law.

The toughest employer-based illegal immigration law in the U.S. is coming to South Carolina on Jan. 1, a man with an inside view of the law said.

Jim Knight of the Office of Immigrant Worker Compliance in the S.C. Department of Labor, Licensing and Regulation spoke Tuesday to Chamber members, who had plenty of questions about how the law would affect their small businesses.

Knight said the General Assembly amended the 2008 law earlier this year, when attorneys with his department notified legislators that portions of the law would probably be deemed unconstitutional in the wake of a U.S. Supreme Court ruling.

The amended law requires all employers to use the federal E-Verify system to ensure that new hires are eligible to work in the U.S.

And by “all,” the state truly means all employers, Knight said – not businesses that employ more than 10 people, as is the case in Georgia, or businesses that employ more than 25 people, as North Carolina is planning.

People who hire domestic help, like nannies, that are treated as employees would also have to use E-Verify, as would family businesses that hire family members, if the business is structured so that family members are employees.

Further, a business doesn’t even have to employ illegal immigrants to get in trouble. Mere record-keeping violations could see a business shut down for 10 to 30 days, he said.

That penalty is more stringent even than what the S.C. Occupational Safety and Health Administration can levy, he said.

In 40 years, OSHA has never shut down a business, even when a worker was killed, Knight said.

Knight said the department will be in “warning” mode for the first six months of 2012, to help businesses get adjusted to the new law.

After July 1, a first-time incident of failing to use E-Verify will get a business on a one-year probation, during which it must submit quarterly reports about its new hires.

For subsequent violations, LLR will shut down the business for 10 to 30 days, he said.

There is no warning or probationary period for knowingly employing someone ineligible to work, he said, and a fourth occurrence of knowingly hiring such a person means the business will be shut down for five years.

Knight cautioned that the E-Verify system cannot be used to check the status of existing employees. It can be used only to check on new hires.

Further, if the E-Verify system returns a “tentative nonconfirmation” status, the employer must give the worker the option to contest that status and cannot penalize the worker while the status is being reviewed.

A tentative nonconfirmation could occur because a woman has married and hasn’t updated her information with the Social Security Administration, because of bureaucratic error inputing information, or because the worker has fake documents, Knight said.

Some business owners were frustrated that they would be required to continue employing someone during the review process, only to potentially be required to fire that person if the E-Verify system determines he cannot work.

That’s money and time on training wasted, a business owner said.

“Unfortunately, there’s not an exception or another option for you,” Knight said.

Beulah Abdon of Nick’s Pest Control said the requirement to use an Internet-based system is an “added hardship” for small businesses that might not have computers.

“It’s just more extra work for the small business person,” she said.

Knight said his department is working with libraries to ensure they can direct small business owners to the E-Verify site on library computers.

Businesses also have the option of designating a third party, like an attorney or accountant, to conduct the E-Verify vetting.

LLR will be enforcing the law through random audits, particularly of businesses in the hotel, construction, landscaping and certain manufacturing industries, and written complaints.

A written complaint would have to be fairly specific and be signed, he said. The department wouldn’t take a complaint from someone who said he drove by a work site and saw a bunch of people who looked like Hondurans or Vietnamese or some other ethnicity.

“You can’t judge legality of people based on accents or the color of their skin,” he said.

For more information, go to the LLR site at www.llr.state.sc.us.

The department is conducting webinars throughout the month and will hold another in-person training Dec. 13 at the main branch of the Charleston County Public Library.

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