Compliance Corner – State Immigration Law Update: South Carolina

While comprehensive immigration reform remains stalled at the federal level, individual states continue to implement measures relating to immigration.

Most recently, on December 22, 2011, a federal district court enjoined three provisions of South Carolina Act 69 and found a fourth provision likely to be overturned in future proceedings. The ruling makes South Carolina the sixth state – after Arizona, Indiana, Georgia, Utah, and Alabama – to see major parts of a punitive immigration law blocked in federal court.

South Carolina’s amended immigration law, enacted in June 2011, was challenged in court by both the federal government and a coalition of civil rights groups. U.S. District Judge Richard M. Gergel entered temporary injunctions against three provisions, finding each to be preempted by federal immigration law.

The three provisions that were enjoined are:

• The section that makes it a state crime to transport or harbor undocumented immigrants, or for undocumented immigrants to allow themselves to be transported or harbored.
• The section that makes it a state crime to fail to carry an immigration registration document issued by the federal government.
• The section that requires police to try to determine the immigration status of any person under investigation or arrest whom the officer has “reasonable suspicion” to believe is in the country illegally, and which makes it a state crime to possess or attempt to use a fraudulent identification to establish lawful presence in the United States.

A fourth provision, making it a state crime to sell fraudulent identification to undocumented immigrants, was also found to be preempted by federal law. The court, however, declined to issue a temporary injunction with respect to that section after determining that the federal government would not face irreparable harm if the provision went into effect while legal proceedings continued.

In issuing its ruling, the court noted that the State of South Carolina is not entitled “… to adopt its own immigration policy to supplant the policy of the national government.” The decision, once again, confirms the position recently taken by federal courts that states are preempted from enacting their own immigration policies or impeding the federal government’s efforts to enforce federal immigration law.

Essential Immigration Seminars: Raleigh and Houston

Employers may find it difficult to keep up with all the immigration changes regarding I-9s, E-Verify, business visas (such as H-1B and L-1), and green card sponsorship. In addition, an emerging area of concern for employers is the interplay of immigration and employment laws and how to simultaneously comply with both. Employers can obtain valuable, up-to-date information by attending the upcoming Essential U.S. Immigration Law Briefings, presented by Ogletree Deakins, addressing the latest immigration law topics impacting employers. The events will take place on February 9, 2012 in Raleigh, North Carolina and March 28, 2010 in Houston, Texas. Please see our Seminars & Events page for more information and to register for these and other upcoming events.