There have been significant and recent developments in immigration law that will likely impact businesses in South Carolina and North Carolina in 2013. This article summarizes both federal and state immigration developments.
On the Horizon - Will There Be a New I-9 Form in 2013?
In March 2012, U.S. Citizenship and Immigration Services (USCIS) proposed a new I-9 form and invited public comments until Fall 2012. USCIS continues to review thousands of comments and will likely release final changes to Form I-9 in the coming months. The most significant proposed changes include expanding the form to two pages and increasing the data fields in Sections 1, 2 and 3 to allow for additional information.
Employers should continue using the existing Form I-9 even though it contains an expiration date of August 31, 2012, in the top right-hand corner. The current version of the form has an effective date of August 7, 2009, in the bottom right-hand corner.
ICE Audits - Braving the Storm Should ICE Come Knocking
Immigration and Customs Enforcement (ICE) conducted more than 3,000 audits of businesses in 2012. Civil monetary fines for employers rose from $1 million in fiscal year 2009 to $13 million in 2012. President Obama continues to advocate the need for comprehensive immigration reform, but emphasizes that reform must contain penalties for companies intentionally hiring illegal immigrants. There are various reasons a business may be selected for an ICE audit, including leads from others (i.e. members of the public, former employees), but ICE may randomly select a business for audit as well.
Employers should periodically review I-9 and E-Verify records for compliance and implement a designated correction method if needed. Managers responsible for state and federal immigration compliance should participate in detailed training on compliance issues.
North Carolina E-Verify Law
On June 18, 2011, the North Carolina General Assembly passed House Bill 36, which mandates E-Verify in various phases for private employers with 25 or more employees. The law exempts seasonal temporary employees employed for 90 days or less during a consecutive, 12-month period. The North Carolina Department of Labor will enforce the law and investigate any complaints filed against an employer. Employers with 500 or more employees began complying with the law on October 1, 2012. Employers with 100 to 499 employees must begin E-Verify for new hires on January 1, 2013, while employers with 25 to 99 employees must roll into compliance on July 1, 2013.
Recently, President Obama signed legislation extending the E-Verify program for a three-year period until September 30, 2015.
South Carolina Illegal Immigration Reform Act
On January 1, 2012, most South Carolina private employers were required to begin using E-Verify for all new hires regardless of the employer's size. The South Carolina Department of Labor, Licensing and Regulation enforces the law and has audited hundreds of businesses since the law went into effect. If employers have not enrolled in E-Verify to date, be aware that running late queries can raise concerns and should be carefully considered.
Conclusion
In 2013, businesses must stay alert of new developments, both at the federal and state level, in the area of immigration law. Internal audits and effective immigration compliance training by experienced counsel are proactive steps to help employers prepare and potentially minimize their exposure should a federal or state audit occur.
PartnerMelissa Azallion Kenny is the Chair of the firm’s Immigration practice group. She has more than 20 years of experience advising clients on business immigration and labor and employment law issues. Ms. Kenny represents clients in ...
