E-Verify & I-9 News

As the New Year approaches, it’s important to re-visit some of the state-specific E-Verify legislation passed in 2008 that have upcoming deadlines and implementation dates in 2009. In particular, both Missouri and South Carolina have E-Verify laws which are set to take effect this week, starting January 1, 2009.

Missouri’s E-Verify law applies to employers that receive state contracts or grants in excess of $5,000, or any business entity receiving a state-administered or subsidized tax credit, tax abatement, or loan from the State of Missouri. Under the law, these employers must enroll and participate in E-Verify and also document their enrollment by sworn affidavit.  Employers who violate these requirements can face suspension of their business permits, licenses, or exemptions. The law stipulates, however, that employers participating in E-Verify will have an affirmative defense to any charges that they have knowingly employed an unauthorized foreign national.

South Carolina’s E-Verify law is being implemented in stages, and the first phase going into effect this week will apply to all contractors and subcontractors with 500 or more employees that seek to enter into state contracts for services valued in excess of $25,000 or $15,000, if the contract is with a political subdivision. Under the law, these employers will be required to either participate in E-Verify or to restrict their hiring to only those individuals who possess or qualify for a South Carolina driver’s license, or other state license with similarly strict requirements.

The next phase for South Carolina will take place on July 1, 2009, when the law will take effect for mid-sized contractors (those with 100 or more employees) as well as mid-sized private employers (those with 100 or more employees). The last and final phase will be July 1, 2010, at which time all employers (private and public) will be covered. As with Missouri, potential penalties for violations can include fines and suspension of business licenses.

State-specific E-Verify laws are detailed and complex. Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website to help you to manage these new requirements.

Today, the U.S. Chamber of Commerce and several other organizations filed a federal lawsuit challenging the legality of requiring federal contractors and sub-contractors to use E-Verify. Among other things, the plaintiffs argue that the practical difficulty of identifying which employees are covered by the requirements, as well as the potential that its violation may result in suspension or debarment will force many employers to electronically “reverify” all of their existing employees hired after November 6, 1986. This will then increase the likelihood that many employers will face expensive and time-consuming lawsuits brought by individuals who believe they have been discriminated against on the basis of race and/or national origin.

The Chamber and co-plaintiffs also allege that the regulations violate existing law, exceed statutory authority, constitute improper rulemaking by the Executive Branch, and fail to account for the significant costs to employers who, must replace workers who become unauthorized to work solely by operation of the E-Verify requirements. The government had estimated that for fiscal year 2009 alone, employers’ startup and training costs for complying with the E-Verify Federal Contractor requirements would total $188,138,945.

The lawsuit seeks an injunction, preventing the government from enforcing the E-Verify rule and a declaration that President Bush’s executive order is illegal and invalid.

Today, the interim final rule revising the Form I-9 and list of acceptable documents was published in the Federal Register with an effective date of February 2, 2009. As previously reported , the new rule calls for minor changes to the Form I-9, revises the list of acceptable documents and stipulates that employers can no longer accept expired documents. The entire rule is available online in PDF and also includes an “informational” or sample copy of the new Form I-9 that will be made available to employers on the USCIS web site. Until the new rule goes into effect, employers should continue using the currently valid June 5, 2007 version.

The USCIS will be publishing a new rule which will revise the list of documents that employers can accept to verify the identity and employment eligibility of new hires. The new rule also revises the Form I-9 and stipulates that employers can no longer accept expired documents. Currently, the U.S. passport and all List B documents are acceptable, even if expired. The rationale for this change is that expired documents are prone to fraudulent use (counterfeiting) and newer documents are more likely to contain security features which make them less vulnerable. It is important to note that documents without an expiration date (such as a social security card) are deemed “unexpired” under the new rule.

Among the proposed changes, the rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A.  USCIS no longer issues these cards, and all that were in circulation have expired.

One of the most crucial aspects of the new rule is the timing – employers must use the revised I-9 form for all new hires (and reverifications) beginning 45 days after it’s been published in the Federal Register. Experts in the field predict that the USCIS may publish the rule early this week, which means that it could go into effect by early February. Once in effect, employers must use the new form or face civil monetary penalties.

The full announcement is posted on the USCIS web site and available in PDF.