Critics say it’s an unfairloophole; others say it avoids labor shortages
By NOELLE PHILLIPS, The State
Published March 18, 2012
A loophole in the S.C. immigration law exempts farm workers and private maids and nannies from a mandatory immigration status check.
The law, which went into effect Jan. 1, requires all private employers in South Carolina to use the federal E-Verify database to check newly hired employees’ immigration status. However, a little-known loophole provides exceptions for four categories of workers — agriculture laborers, domestic workers in a private residence, ministers and fishermen working on crews of 10 or fewer people.
The agriculture industry and the legislators who supported theexemption said it was necessary because migrant farm workers would be difficult to check, and no one wanted South Carolina to encounter a shortage of workers to pick peaches, strawberries and watermelons, as Georgia and Alabama recently did.
“The migrant community operates on a whole different set of rules,” said Sen. Larry Martin, R-Pickens, who shepherded the immigration bill through the S.C. Senate.
But critics, who just recently learned of the loophole, say it was created in secret. They say it is unfair for legislators to create an exemption for select groups and not provide it to other small businesses.
When legislators were drafting the bill in 2011, they said their purpose was to discourage illegal immigrants from living and working in South Carolina. They blamed illegal immigrants for a range of problems, including unemployment and crime.
If deterring illegal immigration is the reason for the bill, then the loophole defeats its purpose, said Frank Knapp, president of the S.C. Small Business Chamber of Commerce.
“When you think of businesses that attract undocumented workers, you think of construction,” he said. “And then you think of agriculture and you think of domestic workers. So, two of the top three places an illegal immigrant might go are exempt.”
The loophole was created by using definitions for private employers and wages in other parts of the S.C. legal code. That’s how the exemptions for domestic workers, preachers and small fishing crews were created, because those professions are grouped with agriculture workers in language in other legal definitions.
Sen. Chip Campsen, R-Charleston, another supporter of the immigration bill, said the loophole was necessary to get the bill passed. He said he was against the exemption but said it doesn’t make the bill ineffective.
“Even a shrimp net with holes in it catches shrimp,” Campsen said.“Something that is not perfect doesn’t mean it still doesn’t accomplish something.”
David Winkles, president of the S.C. Farm Bureau, said his organization worked with lawmakers to include the exemptions.
“Agriculture has special circumstances,” Winkles said. “We have alot of temporary workers. Those are problematic with E-Verify.”
While Winkles said the Farm Bureau asked for the exemption and Martin said he supported it, some legislative watchers said it was slipped into the bill with little public input.
Knapp said he only learned about it when he did a television interview about the law and stated that all businesses, including farmers, had to check immigration status. After the interview aired on an Upstate television station, someone from the S.C. Department of Labor, Licensing and Regulation, the agency that enforces the law, called to correct him, Knapp said.
Tammy Besherse, an attorney for the S.C. Appleseed Legal Justice Center who monitored the bill’s impact on racial profiling, attended every hearing or debate.
“I do not remember that being publicly stated,” she said of the loophole. “I don’t think I missed a meeting.”
The exemption did not generate much debate, Martin said. “It was not discussed in a big way, but it did get mentioned,” he said.
The law requires businesses to use the federal E-Verify system, which checks people’s names and Social Security numbers against an electronic database. The S.C. Department of Labor, Licensing and Regulation enforces the law, and those caught breaking it risk having their businesses closed.
When a name and number do not match, the federal government has a procedure for an employee to contest the ruling before he or she is fired.
Winkles said the system often incorrectly indicates a mismatch, which creates a hassle for farmers who need a ready workforce to harvest crops.
It’s hard to quantify how many farm workers would be allowed to work in South Carolina through the exemption.
Farms that participate in the federal government’s agriculture visa program would not be hiring illegal immigrants. Since Jan. 1, 22 S.C. farms have enrolled in the visa program to request 1,649 immigrant workers, according to a U.S. Department of Labor database.
Winkles said he did not know how many laborers are needed to harvest the state’s crops.
“I’d hate to put a number on it, but we’re not talking about a mass of people,” he said.
S.C. farmers cannot find enough local people to work their fields, Winkles said. Migrant workers are an essential piece of the agriculture industry, and a mandate to check their work status might scare them out of South Carolina.
That’s what happened in Georgia and Alabama after those states passed mandatory employment checks. Some Georgia farmers reported leaving crops to rot in fields because they could not find enough people to harvest the produce.
“We can hold those up and say, ‘We told you so,’” Winkles said.