October 3, 2012: Employment Law - Business Immigration Update

by Nexsen Pruet, PLLC

Over the past few months, there have been several immigration developments that could have a significant impact on businesses in North and South Carolina. This update summarizes the key developments for employers.

Are You Ready for a New I-9 Form?

In March 2012, U.S. Citizenship and Immigration Services (USCIS) proposed a new I-9 form and provided a public comment period until May 29, 2012. With more than 6,000 comments received, USCIS continues to review the public comments and extended the comment period through September 2012. USCIS will likely release final changes to the 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.

In the meantime, however, USCIS announced recently that employers should continue using the existing 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.

North Carolina Immigration 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 Commissioner of Labor enforces the law and will investigate any complaints filed against an employer. Employers with 500 or more employees must comply with E-Verify for new hires starting on October 1, 2012. Employers with 100 to 499 employees must comply starting on January 1, 2013, while employers with 25 to 99 employees must begin E-Verify for new hires by July 1, 2013.

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 conducted over 800 audits since the law went into effect. If employers have not enrolled in E-Verify to date, be aware that queries about enrolling can create additional problems.

Over the past few months, there have been several immigration developments that could have a significant impact on businesses in North and South Carolina. This update summarizes the key developments for employers.

U.S. Supreme Court Strikes Down Portions of Arizona Immigration Statute

On June 25, 2012, the U.S. Supreme Court ruled, in a 5-3 decision, that three of the four challenged provisions of S.B. 1070 (Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act) were preempted by federal immigration law. Arizona et al. v. U.S. , No. 11-182 (June 25, 2012). The Court upheld Section 2(B) of the Act, which requires law enforcement officers to check a person’s immigration status while enforcing other laws if reasonable suspicion exists concerning the person’s legality. The decision confirmed, however, that other preemption and constitutional challenges to the law as interpreted and applied could be brought. The Court struck down provisions making it a misdemeanor for an individual to fail to comply with federal alien registration requirements; making it a criminal offense for an undocumented worker to solicit, apply for or perform work in the state; and authorizing state and local officers to arrest a person when the officer has probable cause to believe he or she has committed a public offense making the person removable from the United States.

E-Verify Update

In June 2011, the U.S. Supreme Court held that states can pass laws mandating E-Verify for employers as part of their licensing laws, and many states – including South and North Carolina – have passed such laws. Recently, the U.S. Senate passed a bill (S. 3245) that would extend the E-Verify program for an additional three-year period until September 30, 2015. The House passed the bill on September 13, 2012, and President Obama signed it into law on September 28, 2012.

Employers must continue to remain alert concerning new developments in the area of immigration law. By adopting solid policies and good practices to abide by these new laws, employers will likely minimize their exposure should a federal or state audit occur.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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