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MYTH IUndocumented workers are notprotected by South Carolina orUnited States laws.

TruthUndocumented workers are pro-tected, without regard to immigra-tion status, by laws affectingwages, working conditions, on-the-job injuries and discrimination.

• The South Carolina Payment ofWages Act guarantees triple dam-ages and attorneys’ fees for unpaidwages. S.C. Code Ann. § 41-10-10

• The Federal Minimum Wage law(FLSA) guarantees workers $5.15per hour and overtime (if coveredand not otherwise exempt). 29U.S.C. § 201 et seq.

• The South Carolina Workers’Compensation Act covers on-the-job injuries. S.C. Code Ann.§ 42-1-10

• Agricultural workers are covered

by the Migrant and SeasonalAgricultural Worker Protection Act.This guarantees written disclosuresat recruitment, minimal housingconditions, written pay statementsand more. 29 U.S.C. §1801 et seq.

• Undocumented workers are covered by the National LaborRelations Act (NLRA). Undoc-umented workers therefore are ableto participate in organizing, joiningor voting for a union. However,they are limited from obtainingback pay under the NLRA. 29 U.S.C.§152(3); and Sure-Tan Inc., et al. v.NLRB, 672 F.2d 592 (1982), rev’d onother grounds 467 U.S. 883 (1984)(reversed the judgment of the Courtof Appeals insofar as it imposed aminimum backpay award and man-dated certain specifics of the rein-statement offers).

• Workers are protected against jobdiscrimination and sexual harass-ment without regard to theirimmigration status. Title 7, CivilRights Act of 1964.

Legal Basics | Part 2 in a series

10 BiggestMyths About

Immigrants andthe Law in S.C.

By The Immigration Subcommittee, Access to Justice Committee

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MYTH IIImmigrants are prohibited fromreceiving any type of public bene-fits.

TruthImmigrants can receive differenttypes of assistance for themselvesand/or for their U.S. citizen chil-dren.

• Immigrants may be able to receivefood stamps, Temporary AssistanceFor Needy Families (TANF),Medicaid and SupplementalSecurity Income (SSI). Theimmigrant would have tomeet income guidelines andqualify based on legal immi-gration status. Note, though,that an undocumentedimmigrant can apply for theabove services for a U.S. citizenchild. The U.S. citizen child or chil-dren are eligible for the benefit aslong as the parent meets incomeand other guidelines. 42 C.F.R. Part435.406 and Personal Responsibilityand Work Opportunity Act of 1996(PRWORA)—Public Law No. 104§400 et seq.

• All immigrants can receive emer-gency Medicaid if they meet certainrules. Emergency Medicaid coversconditions that put one’s health orlife in serious danger. 42 C.F.R. Part435.406 and Personal Responsibilityand Work Opportunity Act of 1996(PRWORA)—Public Law No. 104§400 et seq.

• All immigrants can get help fromshelters and mental illness or drugand alcohol services. 8 U.S.C.§1611

• All immigrants can go to theemergency room for treatment. 42U.S.C. §1395 dd

• All immigrants can receive the fol-lowing (as long as other guidelinesare met where required):

1. Public health programs thatgive immunizations or pro-vide testing and treatment forcommunicable disease symp-toms. They can also receiveservices from community

health clinics. PRWORA § 401or 8 U.S.C. §1611

2. Women Infants Children(WIC) food benefits. 42U.S.C. §1786. WIC providespregnant women and chil-dren up to age five with sup-plemental foods. Id.

3. School breakfast and lunchprograms. PRWORA §403,742 or 8 U.S.C. §1613,1615

4. Head Start. Id. 5. Homeless shelters

and soupkitchens. PRWO-RA § 401 or 8U.S.C. §1611

6. Emergency shel-ter/food/clothing.Id.

7. Soup kitchens and Meals onWheels. Id.

8. Child and Adult ProtectiveServices from DSS. PRWORA § 403, 742 or 8 U.S.C.§1613,1615

9. Police, fire, ambulance, publictransportation (like buses)and sanitation services.PRWORA § 401 or 8 U.S.C.§1611

10. Other services necessary toprotect life or safety that arenot conditioned on theindividual’s income orresources. Id.

But, if immigrants receive ben-efits, won’t that make them a“public charge” (i.e. someone who

depends on the government forincome)? If the government decidesthat someone is a public charge,they may be stopped from getting agreen card or entering the UnitedStates. Illegal Immigration Reformand Immigrant Responsibility Act of1996 (IIRIRA) Pub L. No. 104-208,110 Stat. 3009 (1996).

• An immigrant could be a publiccharge if he or she receives TANFor SSI. IIRIRA

• An immigrant could be a publiccharge if he or she receivesMedicaid to pay for a nursinghome or long-term care facility.IIRIRA or 64 Fed. Reg. 28689

• An immigrant will not be a publiccharge if he or she gets help fromthe following: (IIRIRA or Fed. Reg. 28689, 28693)

1. Medicaid for regular healthcare;

2. food stamps;3. housing assistance;4. school breakfast and

lunch;5. job training;6. childcare;

7. homeless shelters;8. transitional housing;9. soup kitchens; or10. health clinics.

The government may decide animmigrant is a public charge if he orshe is very old and has many healthproblems or if he or she has a bigfamily to support. If the immigrantis young, healthy and has job skillsor education, the government willprobably decide that he or she isnot a public charge. The immigra-tion authorities will make a determi-nation on the question of whetherthe immigrant is ineligible for per-manent residence as a public chargeat the immigrant’s interview for per-manent residence. The determina-tion is made by weighing a numberof factors, including the amount of benefits, how recently they werereceived and if restitution has been made to the governmentalauthority for benefits received.IIRIRA or Fed. Reg. 28689, 28693 or8 U.S.C. §1182

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MYTH IIISchools do not help childrenwho are LEP (Limited EnglishProficient).

TruthUnder an Equal Protection argu-ment, the Supreme Court heldthat undocumented immigrantshave a right to public education.Plyler v. Doe, 457 U.S. 202 (1982)

Schools are required by law todo certain things for children whoare LEP. For example:

• The schools must have programsthat teach LEP children and givethem the skills they need, includ-ing bilingual/bicultural educa-tion, English as a SecondLanguage (ESL) or structuredimmersion. See Lau v. Nichols,414 U.S. 563, 94 S.Ct. 786(1974); Castaneda v. Pickard, 648F.2d 989 (1981); Plyler v. Doe, 457U.S. 202 (1982)

• If the parents do not speak, reador understand English, the schoolmust work with them. The schoolmust send all information to theparents in a language the parentsunderstand. May 25, 1970,Memorandum from theDepartment of Health, Educationand Welfare.

• Schools may not require students ortheir parents to produce documentsthat speak to their immigration sta-tus as a prerequisite to enrollment.This includes documents such as apassport, visa, green card or a SocialSecurity number. Plyler v. Doe, 457U.S. 202 (1982)

MYTH IVAgencies that receive money fromthe federal government do nothave to give immigrants materialsin their native language.

TruthUnder Title VI of the Civil RightsAct, agencies that receive moneyfrom the federal government mustprovide immigrants translatedmaterials. See Executive Order13166 (2000).

• Title VI gives LEP persons theright to an interpreter who has thespecial skills to be an interpreter.

• Title VI gives LEP persons the rightto have all important forms trans-lated into their native language.

• Some examples of agencies whomust provide the service are:

1. law enforcement authorities;2. hospitals;3. nursing homes;4. mental health centers;5. legal services;6. schools;7. domestic violence centers;

and8. state agencies.

• If an agency does not provide theservice, people can call the Officeof Civil Rights (OCR) at 1-888-TITLE-06 (1-888-848-5306) tomake a complaint.

MYTH VImmigrants cannot file a com-plaint under the Fair Housing Actfor housing discrimination.

TruthImmigrants, documented or not,are protected under this act andcan file a complaint. See FairHousing Act, 42 U.S.C. §3601 et seq(1968).

For example:

• The law prevents people frombeing treated differently or unfair-ly in the sale, rental or financingof housing.

• People cannot be treated different-ly or unfairly because of race,color, national origin, religion,sex, familial status or handicap.

• Some examples of discriminationunder the law are:

1. not renting to someone, sell-ing to someone or negotiat-ing with someone abouthousing because of their race,color, national origin orbecause there are children inthe family;

2. stating there is no housing

available when there is;3. setting different terms for the

sale or rental of housing; 4. any effort to stop someone

from renting or buying a housein an area that is racially orethnically different from them;

5. advertising housing for sale orrent and using biased wordsin the ad; and

6. setting different terms for thesale or rental of land for amobile home.

MYTH VIUndocumented immigrants whoare battered will be deported orremoved automatically if they callthe police.

TruthThere are laws to help batteredimmigrants. The law provides forbattered immigrants to stay heretemporarily until they areapproved to be lawful permanentresident(s).

For example:

• The Violence Against Women Act(VAWA) can help immigrants whoare or were spouses of U.S. citizensor lawful permanent residents. Itcan also protect the victim’s kids,even if the kids are not related tothe U.S. citizen or lawful perma-nent resident. Violence againstWomen Act of 1994, Pub. L. No.103-322, 108 Stat. 1902-55, 8U.S.C §§ 1151, 1154, 1186a, 1186anote, 1254 (1994).

• There are also U-Visas that helpimmigrants temporarily. To get aU-Visa, an immigrant must:

1. have suffered substantialphysical or mental abuse as aresult of certain crimes listedin the statute and

2. show that they possess infor-mation concerning the crimi-nal activity and that they arebeing, have been or will behelpful to an official orauthority investigating orprosecuting that activity.

(U.S. Department of HomelandSecurity—Citizenship and

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Immigration Services Memorandumof October 8, 2003. Currently, theDepartment of Homeland Securityhas no official regulations for U-Visas. Those who receive U-Visas arereceiving interim U-Visas until theregulations are finalized.)

• The T-Visa gives immigrants whohave been the victim of a “severeform of trafficking in persons”temporary legal status. The immi-grant must help the police or gov-ernment in their request for assis-tance in the investigation or pros-ecution of acts of trafficking.Persons who have filed a bonafide application for a T-Visa andtheir derivative beneficiaries areeligible to receive federal benefitsto the same extent as a refugeecan receive them. Victims ofTrafficking and ViolencePrevention Act of 2000, 114 Stat. 1464, Pub. L. No. 106-386Oct. 28, 2000

MYTH VII All people and agencies have aduty to report undocumentedimmigrants.

TruthOnly certain agencies must reportundocumented immigrants andonly under certain very narrowconditions.

For example:

• Individuals have no duty to reportpeople even if they know they areundocumented. It is the U.S.Immigration and CustomsEnforcement Office’s job to inves-tigate and find immigrants thatare here illegally. However, if aperson helps someone who is hereillegally by harboring them orassisting them, and should haveknown they were here illegally,then he or she may face charges.Immigration and Nationality Act(INA) §274A(a)(1)(A)

• Hospital staff has no duty toreport undocumented immigrants.The Medicare Prescription Drug,Improvement and ModernizationAct of 2003 (MMA) Section 1011

provides funding for hospitals toserve undocumented immigrants.This implicitly implies that hospi-tals have no duty to report undoc-umented immigrants.

• Schools cannot report childrenunless they have the parent’s per-mission or are given a subpoena.Plyler v. Doe, 457 U.S. 202 (1982)

• The police have no duty to reportundocumented immigrants.However, state and local lawenforcement authorities mustrespond to inquiries from the U.S.Immigration agencies of theDepartment of Homeland Security.(They are: U.S. Citizenship andImmigration Services, or CIS;Immigration and CustomEnforcement, or ICE; and Customsand Border Protection, or CBP).Gonzalez v. City of Peoria, 722 F.2d468 (9th Cir. 1983)

• Only certain federal and state agen-cies must report undocumentedimmigrants. The agencies mustreport those seeking food stamps,Supplemental Security Income (SSI)benefits, Temporary Assistance forNeedy Families (TANF) benefits orpublic housing benefits. However,they only have to report undocu-mented immigrants if the follow-ing is true:

1. the immigrant is seeking ben-efits for himself/herself, nothis or her children or otherfamily members;

2. the immigrant gives theagency papers that state he ishere illegally, such as a finalorder of removal; and

3. the agency makes an officialdecision that the immigrant ishere illegally. (PRWORA § 404)

• These agencies must reportundocumented immigrants inthe above narrow circumstances.

1. Department of Social Services(DSS)

2. Social Security Administration(SSA)

3. Department of Health andHuman Services (DHHS)

4. Department of Housing andUrban Development (HUD)

Agency workers have no duty toreport non-applicants. A non-appli-cant is a person who applies forpublic benefits for someone else. Anexample would be if an undocu-mented mother applies for TANFbenefits for her U.S. citizen child.PRWORA § 404

MYTH VIIIUndocumented immigrants haveno due process rights, and personswho are Limited English Proficient(LEP) have no right to a courtinterpreter.

TruthThe right of a person within the physical jurisdiction of theUnited States to have access tocourts of law is well supportedby legal precedent. The DueProcess and Equal Protectionclauses of the 14th Amendmentapply to legal and illegal immi-grants.

The S.C. Code of Laws provides forinterpreters:

• For Civil Court—Section 15-27-155 applies (interpreter for partyor witness unable to speakEnglish):

1. When a party or witness toa civil legal proceeding doesnot sufficiently speak theEnglish language to testify,the court may appoint aqualified interpreter tointerpret the proceedingsand the testimony of theparty or witness.

2. There are rules about whatqualifications the interpretermust have.

• For Criminal Court—Section 17-1-50 applies (interpreters in criminalproceedings):

1. Interpreters are available forlegal proceedings in which anon-English speaking personis a party or witness. The per-son must have a limited abili-ty to speak or understand theEnglish language.

2. There are qualifications andguidelines required for theinterpreters.

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MYTH IXUndocumented workers do notpay taxes.

TruthMany undocumented workers dopay taxes.

• Many undocumented workersreceive their wages through regularpayroll checks from which FICA iswithheld (thus federal taxes andstate taxes are withheld). TheSocial Security Administration(SSA) reports that $7 billion is paidto a “suspense file” when SocialSecurity numbers don’t match up.Testimony of James B. Lockhart,Deputy Commissioner for SocialSecurity before House Ways andMeans Committee, March 10, 2004

• Social security taxes are withheldfrom the wages of undocumentedworkers, but because they areundocumented, they are not enti-tled to receive retirement benefitswhen they retire. Thus, an undoc-umented worker could pay intothis system for a lifetime withoutever receiving a benefit. SSArequires an applicant for benefitsto prove citizenship or permanentresident status. www.ssa.gov

• The Internal Revenue Service (IRS)creates identification numbers forwage-earners who are not entitledto receive a Social Security number.The number is the IndividualTaxpayer Identification Number(ITIN), and while it does not grantthe holder a particular immigrationstatus or the right to be employed,it does allow the taxpayer to com-ply with her obligations under fed-eral and state tax laws. www.irs.gov

• Many undocumented workers filetheir federal and state taxes with theIRS and their state Department ofRevenue every year. According tothe IRS, in 2001, as many as530,000 Forms 1040 were filed bytaxpayers using the ITIN only issuedto taxpayers who do not qualify fora Social Security card. Testimony ofPamela J. Gerdiner, Acting InspectorGeneral for Tax Administrationbefore the House Committee on

Ways and Means (March 10, 2004)

• Undocumented workers also con-tribute to the economy throughsales, property and other taxes thatall individuals pay on a daily basis.Seven billion dollars in adjustedgross income has been reported bywage earners who have filed aForm 1040 using an ITIN. Id.

MYTH XIf you marry a U.S. citizen or per-manent resident or have a childborn in the United States, you caneasily get legal status.

TruthIt is very difficult to get legal sta-tus, even with close family ties inthe United States.

• If an immigrant entered the UnitedStates illegally (without inspectionat the border), in most cases theimmigrant will be unable to obtainpermanent residence (the greencard), even if the immigrant mar-ries a U.S. citizen. An alien musthave been “inspected and admittedor paroled into the United States…” 8 U.S.C. §1255. By nature, thisprecludes cases where the alienentered the United States illegally.The immigrant will succeed only ifhe or she can prove that his or herspouse or parent would sufferextreme hardship without them,which is very difficult to prove. 8U.S.C. §1182(a) (9) (B) (v)

• Young children who are U.S. citi-zens cannot facilitate legalizationof their parents. Instead, the childmust be 21 years of age before heor she may sponsor a parent forpermanent residence. 8 U.S.C.§1151(b) (2) and §1154(a) (1)

• As difficult as it may be to accept ona constitutional basis, getting mar-ried without legal immigration statusin South Carolina is prohibited. “Allpersons, except mentally incompe-tent persons and persons whosemarriage is prohibited by this section[as incestuous], may lawfully con-tract matrimony.” S.C. CODE ANN.§20-1-210(A). However, it is not pos-sible to obtain a marriage license, in

order to contract such a marriage,without a Social Security number orAlien Identification number. S.C.CODE ANN. §20-1-220. The legalbasis is unclear. It should be men-tioned that there is a South CarolinaAttorney General opinion datedJune 15, 2004, that states eventhough the code does not allow it,undocumented immigrants shouldbe allowed to get married.

• Even when available, the process oflegalization can take years, and ithas many special rules. For exam-ple, a lawful permanent residentmay sponsor his or her children fora green card, but it may mean wait-ing for 10 years for approval … andthe son or daughter must remainunmarried throughout this time.All applicants must also establishthat they have a guarantor/sponsorto assure that the applicant willhave adequate financial support. 8 U.S.C. §1183a.

The authors wish to acknowledge theassistance of M. Aurora Vasquez of theAdvancement Project, Inc. and The NationalImmigration Law Center in helping to writeand fact-check this article.

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