E-Verify Requirements in South Carolina: Employer Obligations

The Immigration Reform and Control Act (IRCA), 8 U.S.C. § 1324a, establishes the federal baseline for employment eligibility verification. IRCA applies to all employers with one or more employee, making it the broadest employment verification mandate in the United States. Employers must verify identity and work authorization using Form I-9 within three days of hire.

The E-Verify system, created under IRCA Section 403 (8 U.S.C. § 1324a(d)), is the electronic federal database used to confirm work eligibility. E-Verify cross-references Social Security Administration (SSA) and Department of Homeland Security (DHS) databases. Federal contractors and subcontractors must use E-Verify under Executive Order 11935 and the Federal Acquisition Regulation (FAR).

Employers who hire unauthorized aliens face civil penalties of $375 to $16,000 per violation under 8 U.S.C. § 1324a(e). Criminal penalties apply for pattern-or-practice violations. The Department of Homeland Security (DHS) and Department of Labor (DOL) enforce IRCA. Employers have an affirmative defense if they comply in good faith with I-9 and E-Verify requirements.

South Carolina law, under S.C. Code Ann. § 40-75-30, reinforces federal E-Verify requirements and adds state-level restrictions on employing unauthorized aliens. The statute prohibits state agencies, political subdivisions, and employers from knowingly employing individuals without work authorization. This state law does not create a separate mandate beyond IRCA but strengthens enforcement at the state level.

South Carolina law applies to all employers doing business in the state, regardless of federal contractor status. The state requires compliance with federal I-9 verification and E-Verify use, particularly for state-funded contracts. Employers in South Carolina cannot offer state employment or state benefits to unauthorized workers. The state law aligns with federal requirements but adds civil liability for state agencies and contractors failing to comply.

Unlike some states, South Carolina does not impose mandatory E-Verify on private employers beyond the federal IRCA requirement. However, public employers, state contractors, and employers receiving state funding must participate in E-Verify. The state encourages voluntary E-Verify enrollment through the federal system. South Carolina's approach emphasizes federal compliance rather than creating independent state-level mandates. Remedies under state law include contract termination for non-compliance with verification requirements and potential liability for employment of unauthorized workers.

Federal law provides limited exceptions to E-Verify and I-9 requirements. Election workers and certain volunteer roles may have modified verification procedures. H-1B visa holders, L-1 visa holders, and other visa categories with automatic work authorization may have expedited E-Verify processes but still require verification.

Good-faith compliance provides an affirmative defense under IRCA. If an employer follows proper I-9 procedures and uses E-Verify in good faith, they are protected from penalties even if an employee is later discovered to be unauthorized. The "three-day rule" means verification must be initiated within three business days; if E-Verify is pending beyond that, the employer may place the employee on a "no-match list" under federal guidance.

South Carolina does not provide carve-outs for small employers or family-owned businesses. Sole proprietors and independent contractors may still need I-9 verification if they are treated as employees. E-Verify is not required for 1099 independent contractors, but misclassification is a violation. Temporary workers, seasonal employees, and contractors must be verified. Military members and Native Americans on tribal lands have specific I-9 form variations but still require verification. Union contractors must comply with E-Verify; collective bargaining agreements do not exempt employers from IRCA.

Step 1 — Document and Prepare: Collect all hiring documents (I-9 forms, original identity documents, DHS-issued work permits). Maintain copies of Form I-9 for at least three years after hire or one year after termination. Take screenshots of E-Verify confirmation pages. Keep records of when E-Verify was initiated and completed.

Step 2 — Internal Verification Process: Ensure your HR department follows proper I-9 completion within three business days. Have employees complete Section 1 of Form I-9 on day one. Review original identity documents (passport, driver's license, work permit) on day one and verify authenticity. Complete Sections 2 and 3 within three days. Initiate E-Verify entry within the three-day window through the federal E-Verify portal (www.e-verify.gov).

Step 3 — Federal E-Verify Filing: Access E-Verify at www.e-verify.gov and create an employer account if not already established. Enroll in E-Verify through your state field office or online registration. Input employee name, Social Security number, and date of birth into the E-Verify system. Receive initial verification result (confirmation, tentative non-confirmation, or case in progress). If tentative non-confirmation, provide the Notice of Mismatch to the employee and allow 8 calendar days for the employee to contest through SSA or DHS.

Step 4 — Investigation and Response: If E-Verify returns a match confirmation, retain the confirmation number in your records. If tentative non-confirmation is issued, document that you provided the mismatch notice to the employee and allowed the contest period. Monitor the E-Verify case status online; cases remain open for 8 calendar days while the employee contests. If the employee contests and resolution is pending, consult DOL guidance on continuation of employment (generally, employment may continue during contest period). If final non-confirmation is issued after contest period, the employee is likely unauthorized.

Step 5 — Legal Consultation and Termination: Consult an employment law attorney or immigration attorney before terminating employment based on E-Verify results. An attorney will advise whether your I-9 and E-Verify procedures were compliant and whether state discrimination law (Title VII, ADEA) may apply to the termination decision. If proper procedure was followed and final non-confirmation is issued, terminate employment and document the basis as E-Verify non-confirmation. Report the matter to DHS ICE if required by your industry or if state authorities request it. Keep all documentation for DOL or DHS inspection; federal audits can occur at any time and back-pay claims may arise if procedures were improper.