E-Verify requirements in South Dakota: no mandate after HB 1209 died in conference in March 2026
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As of October 2026, South Dakota has no E-Verify mandate. It came closer than most states without one. In the 2026 session House Bill 1209 cleared both chambers by wide margins, but the House and Senate passed different versions and could not settle on a compromise. On March 11, 2026, the Senate voted 18 to 15 not to adopt the conference committee report, and an attempt to reconsider failed 15 to 19. The bill died, and South Dakota employers remain under federal rules only.
The bill's journey is worth understanding, because a 2027 version will probably start from wherever 2026 ended: a mandate for employers with more than 25 employees, enforced by the attorney general, with a good-faith safe harbor.
Not legal advice. As of October 2026 we reviewed the Legislature's record for HB 1209, including its action log and the texts of the introduced, House State Affairs and Senate State Affairs versions and the conference committee amendment, and we downloaded all titles of the South Dakota Codified Laws from the Legislature's site and searched them for "E-Verify," with no results. News coverage of the final day helped confirm the sequence. We did not review county or city contract terms. Confirm with counsel before relying on this.
HB 1209, version by version
The prime sponsors were Representative Josephine Garcia of Watertown and Senator Lauren Nelson, and the bill was introduced on January 29, 2026 with the title "An Act to require employment verification eligibility through the e-verify program and to provide a penalty therefor."
| Version | Who it covered | Key terms |
|---|---|---|
| Introduced (January 29) | Every employer, as defined in SDCL 61-1-4 | Verify each employee after hiring and keep the record for the length of employment; employers not registered with E-Verify could not receive state economic incentives and would repay incentives received in the prior 12 months; $2,000 civil penalty per violation through the attorney general |
| House State Affairs (amended February 9, 7-4) | Every employer | Incentive clawback removed; verification duty and $2,000 penalty kept |
| Senate State Affairs (amended March 2, 6-2) | Employers with more than 50 employees | Verify within 20 days of the first day of work, with extra time if E-Verify is down; penalty only after written confirmation from DHS or the Justice Department that the employer knowingly employed an unauthorized worker; safe harbor for good-faith E-Verify users; no liability for a staffing agency's or subcontractor's violation unless the employer knowingly took part |
| Conference committee amendment (March 11) | Employers with more than 25 employees | Built on the Senate version; the attorney general had to bring a civil action on finding reasonable cause |
Every version also made it a Class 1 misdemeanor for an individual to knowingly give an employer false information or documents to evade an E-Verify eligibility determination.
The votes
| Date (2026) | Chamber | Action |
|---|---|---|
| February 12 | House | Passed as amended, 49-13 |
| March 4 | Senate | Passed as amended, 32-2 |
| March 9 | House | Refused to concur in the Senate amendments and asked for a conference, 62-7 |
| March 11 | Conference committee | Amended and adopted its report, 4-2 |
| March 11 | Senate | Did not adopt the conference report, 18-15; motion to reconsider failed, 15-19 |
The pattern is the opposite of North Dakota's 2023 experience, where an all-employer bill drew five votes. In South Dakota the idea of a mandate had broad support; the fight was over size thresholds and how much protection to give employers. Senators who opposed the final version argued about overhead for small businesses, which is why the threshold moved from every employer to more than 50 and then to more than 25.
What a revived bill would likely mean
Nothing below is law. If a 2027 bill picks up the conference version, an employer preparing early would want to know:
- Headcount. How the employer counts toward "more than 25 employees" under the SDCL 61-1-4 definition the bill relied on, including part-time and seasonal staff.
- Timing. Federal E-Verify rules already require a case within three business days of the start date for an enrolled employer; the state deadline in the Senate draft was longer, but the federal deadline would still control for anyone enrolled.
- Staffing relationships. The Senate language shielded employers from a staffing agency's violation unless they knowingly participated, which puts the compliance burden on the agency as employer of record. See E-Verify for staffing agencies.
- The safe harbor. Good-faith use plus a retained verification record protected the employer, so record-keeping would matter as much as enrollment.
Should a South Dakota employer enroll now?
There is no legal reason to, outside a federal contract, and enrolling early has costs as well as benefits. The trade-off looks like this:
| Consideration | Enrolling voluntarily in 2026 | Waiting |
|---|---|---|
| Obligations | The federal memorandum of understanding applies at once: a case for every new hire at each enrolled site, within three business days, never before an accepted offer | Form I-9 only |
| Readiness for a 2027 law | Processes, user accounts and mismatch handling already tested | A rush to enroll if a bill passes with a short lead time |
| Protection | No South Dakota safe harbor exists yet; federal good-faith rules apply | The same federal rules |
| Employee experience | Some new hires will receive mismatches and need time to resolve them, with no adverse action allowed meanwhile | No mismatch process to run |
The introduced version's economic-incentive idea also deserves attention from any business that receives state grants or loans. Tying state money to E-Verify is how Missouri reaches private employers that are not otherwise covered (RSMo 285.530 covers businesses receiving state-administered tax credits, abatements or loans, among others), and it is a provision that can return as an amendment to an unrelated economic development bill. For how mismatches work in practice, see E-Verify tentative nonconfirmation.
The neighbors that do have rules
| State | Rule | Typical South Dakota exposure |
|---|---|---|
| Nebraska | Every public employer and every contractor or subcontractor on a public services contract, no dollar threshold | Public work in Nebraska won by South Dakota firms |
| Iowa | Executive-branch agencies for their own new hires (Executive Order 15, October 2025); no private-employer or contractor mandate | Little, unless the firm is hired by an Iowa agency directly |
| Minnesota | Vendors on state services contracts over $50,000 certify E-Verify use (Minn. Stat. 16C.075) | Sioux Falls firms bidding Minnesota state work |
| Montana | No mandate; an E-Verify confirmation or a Form I-9 with document copies must be kept, with state audits | Black Hills contractors working in southeastern Montana |
| North Dakota and Wyoming | No mandate | None |
Federal contracts
A federal contract with FAR 52.222-54 requires enrollment within 30 days of award, whatever South Dakota law says. The clause goes into contracts over $150,000 that run 120 days or more with work in the United States, other than contracts only for commercially available off-the-shelf items, and flows down to services and construction subcontracts over $3,500. Work at Ellsworth Air Force Base or on federal land in the Black Hills is the most common route into it for South Dakota contractors.
A worked example
This is an invented example. A Sioux Falls staffing firm with 40 internal employees and several hundred placements followed HB 1209 through the 2026 session because the conference version would have covered it. When the bill died, it kept its existing process: Form I-9 for every hire, Section 2 within three business days, and no E-Verify. Its Nebraska branch, which supplies workers to a public services contract in Omaha, is already enrolled because Nebraska requires it. Rather than wait for 2027, the firm documents its headcount method and maps what enrolling its South Dakota sites would involve, using E-Verify enrollment steps as a guide.
A South Dakota checklist
- South Dakota-only work and no federal clause: Form I-9 is required; E-Verify is optional.
- Nebraska public services contracts: enroll and verify.
- Federal contracts: check for FAR 52.222-54.
- Track the 2027 session for a revived HB 1209 and its employee threshold.
- Licensing is a separate question; see staffing agency license requirements in South Dakota.
Questions people ask
Does South Dakota require E-Verify?
No. As of October 2026 the South Dakota Codified Laws contain no E-Verify requirement. House Bill 1209 of 2026 would have created one; it passed the House 49-13 and the Senate 32-2 in different forms, but on March 11, 2026 the Senate refused to adopt the conference committee report, 18-15, and a motion to reconsider failed 15-19.
Which employers would South Dakota HB 1209 have covered?
It depended on the version. As introduced and as passed by the House it covered every employer. The Senate State Affairs version limited it to employers with more than 50 employees, and the final conference committee version lowered that to more than 25. None of these versions became law.
What penalties did HB 1209 propose?
Every version gave the attorney general authority to seek a civil penalty of $2,000 per violation, and made it a Class 1 misdemeanor for an individual to knowingly give an employer false information or documents to evade an E-Verify determination. The Senate version added a condition that the attorney general first receive written confirmation from federal authorities that the employer knowingly employed an unauthorized worker.
Do South Dakota companies bidding Nebraska public work need E-Verify?
Usually yes for that work. Nebraska requires every public employer and every contractor or subcontractor on a public services contract to use a federal immigration verification system, with no dollar threshold, under Neb. Rev. Stat. 4-114. A Sioux Falls or Rapid City firm working on Nebraska public contracts should expect the requirement in the contract.