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Immigration law affects employers' handling of information

While immigration issues are consistently in the news, South Carolina employers may be particularly frustrated by guidance issued in December 2015 related to the Immigration and Nationality Act. The law provides for the use of I-9 forms to evaluate the authorization of a prospective employee to work, which may help in preventing the employment of unauthorized parties. However, employers need to be aware that auditing their existing workforce could produce a legal backlash.

Auditing one's workforce could be tricky because of the potential liabilities. Auditing without cause, for example, could result in discrimination offenses. Even with reliable information about a worker's status, it is important to proceed with caution because such information might not be credible. During an audit, an employer must also be aware that it is not appropriate to request an employee's actual documentation because of poor photocopies. E-Verify should only be used for eligibility checks prior to employment unless a special clause has been included in the work contract.

In some cases, employees may begin with falsified information. However, this may not provide legal grounds for dismissal if that employee has since provided legitimate documents and obtained proper authorization to work. Verification based on Social Security numbers should also be avoided during audits. While it is important to proceed cautiously in checking employee status, an employer could also be liable for not taking action upon discovering that they are employing an individual unlawfully.

A worker who has an employment visa might face challenges if the visa expires while they are working. It may be helpful to discuss the situation with an attorney to ensure that prompt action is taken to renew a visa. Additionally, an attorney might act as a liaison for such an individual if any complications arise in the workplace related to a lapse.

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