Could a South Carolina agency accept a driver's license instead of SAVE verification for public benefits?

Plain-English summary

The state labor and licensing director asked whether an agency administering public benefits could accept a valid South Carolina driver's license or identity card as proof of lawful presence instead of querying the federal SAVE system. In 2008, the South Carolina Attorney General's office concluded that the statute required SAVE verification for the covered alien applicants. The driver's-license alternative discussed in the letter was available under a separate employment-verification provision, not the public-benefits provision.

The opinion tied its answer to the text requiring verification through SAVE after a covered applicant executed an affidavit of lawful presence. It emphasized the word “shall” and the Legislature's decision to state an alternative for private employers but not for agencies providing benefits. Its answer addressed the applicants and benefits described by that statute, including the exceptions the opinion acknowledged under state and federal law.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a state agency rely on an applicant's South Carolina driver's license instead of SAVE?

The AG said no for an alien applicant covered by the public-benefits provision. It read the statute as requiring the SAVE process.

Why did the opinion mention private employers?

The employment statute provided a driver's-license or ID alternative to federal work-authorization verification for certain employers. The opinion said that separate provision did not supply an alternative for public-benefit agencies.

What role did the applicant's affidavit have?

The opinion described an affidavit claiming lawful presence and said the statute treated it as presumed proof until eligibility verification was completed through SAVE.

Background and statutory framework

The 2008 South Carolina Illegal Immigration Reform Act included section 8-29-10, which the opinion described as requiring agencies and political subdivisions to verify lawful presence for covered adult alien applicants for public benefits. The quoted subsection directed verification through SAVE after an affidavit. The office contrasted section 41-8-20, which gave certain private employers a driver's-license or ID alternative for employment authorization. It cited Auto Owners Ins. Co. v. Rollison for giving statutory words their ordinary meaning and read “shall” as mandatory in the public-benefits provision.

Citations and references

• section 8-29-10: covered public-benefit applications, affidavits, and SAVE verification.
• section 41-8-20: contrasting private-employer verification alternatives.
• Auto Owners Ins. Co. v. Rollison, 378 S.C. 600, 609, 663 S.E.2d 484, 488 (2008): statutory interpretation.

Official title

November 18, 2008

Requester

Adrienne R. Youmans, Director, South Carolina Department of Labor, Licensing, and Regulation

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-18-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/youmans-a-r-os-8667-11-18-08-sc-illegal-immigration-reform-act.pdf

Original opinion text

H ENRY M CMASTER
NITORNEY GENERAL

November 18, 2008

Adrienne R. Youmans, Director
South Carolina Department of Labor, Licensing, and Regulation Post Office Box 11 329 Columbia, South Carolina 2921 1-1329 Dear Ms. Youmans: We understand from your letter that you desire an opinion of this Office on the South Carolina Illegal Immigration Reform Act. Specifically, you inquire as to whether public agencies and political subdivisions are limited to use of the Systematic Alien Verification of Entitlement System ("SAVE") to verify the lawful presence in the United States ofall applicants for state or local public benefits. According to your letter: The South Caroljna Department of Motor Vehicles currently uses SAVE to verify that an individual in the United States before issuing a drivers license. Private employers are allowed to rely upon this verification as an alternative to using the federal E-Verify work authorization program. S.C. Code §41-8-20 (B)(2). We inquire as to whether state agencies and political subdivisions may also rely upon this verification and accept a valid South Carolina Drivers License in lieu of making another query to SAVE when determining qualifications for public benefits. Law/Analysis In 2008, the Legislature enacted the South Carolina Illegal Immigration Reform Act (the "Act" ). 2008 S.C. Acts 2325. As you explained in your letter, section 8-29-10 of the South Carolina Code, adopted under the Act, requires, except for limited exceptions as provided under State and federal law, as foll ows:

every agency or political subdivision of this State shall verify the lawful presence in the United States of any alien eighteen years of age or older who has applied for state or local public benefits, as defined in 8 USC Section l 621 , or for federal public benefits, as defined in 8

R EMBERT

c. D ENNIS B UILDING •

POST O FFICE Box 11 549

•

COLUMBI A, SC 29211 -1549

• T ELEPHONE 803-734-3970 •

PACSIMILE 803-253-6283

Ms. Youmans
Page2
November 18, 2008
USC Section 1611, that are administered by an agency or a political subdivision of this State. Id. § 8-29-1 O(A). Section 8-29-10 provides that the applicant must execute an affidavit claiming he or she is lawfully present in the United States. S.C. Code Ann. § 8-29-1 O(D). Furthermore, this provision explains how agencies and political subdivisions verify such affidavits. For an applicant who has executed an affidavit that he or she is an alien lawfully present in the United States, eligibility for benefits shall be made through the Systematic Alien Verification of Entitlement (SA VE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until the eligibility verification is made, the affidavit shall be presumed to be proof of lawful presence for the purposes of this article. Id. § 8-29-lO(E). As you point out in your letter, section 41-8-20 of the South Carolina Code, also included in the Act, requires private employers in South Carolina to maintain a South Carolina employment license. As a condition to this license, section 41-8-20 requires certain private employers to register or participate in the E-Verify federal work authorization program to verify an employee's authorization to work. Alternatively, section 41-8-20 allows employers to employ only workers who possess or are eligible to obtain a South Carolina driver's license or identification card or a valid driver's license or identification card issued by another State whose requirements are at least as strict as South Carolina's standards for the issuance of such a license or identification. S.C. Code Ann.
§ 41-8-20(B). Thus, as you indicate, the private employers are authorized to rely upon a potential employee's driver's license or identification card to verify his or her authorization to work in the United States. Thus, you ask whether or not state agencies and political subdivisions may rely on an applicant's driver's license or identification card for purposes of section 8-29-10. In responding to inquiry, we first look to the language in section 8-29-10. As our Supreme Court recently commented:

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute. The court should give words their plain and ordinary meaning, without resort to subtle or forced construction to limit or expand the statute's operation.

Ms. Youmans
Page 3
November 18, 2008
Auto Owners Ins. Co. v. Rollison, 378 S.C. 600, 609, 663 S.E.2d 484, 488 (2008) (citations and quotations omitted). Section 8-29-1 O(E) states that once an applicant for benefits executes an affidavit "eligibility for benefits shall be made through the Systematic Alien Verification ofEntitlement (SAVE) program
.... " (emphasis added). Our courts, looking at other statutes containing the word "shall," interpret this word as meaning the action is mandatory. Johnston v. South Carolina Dsm't of Labor, Licensing, and Regulation, South Carolina Real Estate Appraisers Bd., 365 S.C. 293, 296-97, 617 S.E.2d 36, 364 (2005). Accordingly, we read section 8-29-1 O(E) to require agencies and political subdivisions to use the SAVE program to verify the lawful presence of an alien applying for benefits. Moreover, we also note that while the Legislature provided an alternative means of verifying the lawful presence of an employee to private employers, it failed to do so with regard to agencies and political subdivisions providing public benefits. We believe that if the Legislature intended for agencies and political subdivisions to rely on an applicant's driver's license or identification card, it would have allowed for such as it did with regard to private employers and their employees. 1 Conclusion

Based on our analysis above, we are of the opinion that section 8-29-10 requires agencies and political subdivisions to use the SAVE program to verify the lawful presence of an alien seeking benefits as described in this statute. As such, we do not believe agencies and political subdivisions may accept an applicant's South Carolina driver's license or identification card as a substitute for SAVE verification. Very truly yours, Henry McMaster

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; ; - CyQ.y M. Milling
Assistant Attorney General

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REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General
1

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Note also that the Legislature allowed the possession of a South Carolina driver's license or identification card as a method of verifying employment authorization for employees of contractors performing work for public employers. S.C. Code Ann.§ 8-14-20(B).