E-Verify & I-9 News

U.S. Citizenship and Immigration Services (USCIS) announced today that it is extending the effective date of its interim final rule “Documents Acceptable for Employment Eligibility Verification” for 60 days until April 3, 2009. The rule which was originally published in the Federal Register on December 17, 2008 was slated to go into effect on Monday, February 2, 2009.

As previously reported , the new I-9 rule makes minor changes to the Form I-9, revises the list of acceptable documents and stipulates that employers can no longer accept expired documents. USCIS posted the new I-9 form to its web site on January 18th, but as a result of today’s announcement, they are now advising employers to only use the new form on or after April 3, 2009. Until that time, employers should continue using the 06/05/2007 version, which is also available online .

The delay of the I-9 rule (along with the E-Verify Federal Contractor Rule delay) comes as a result of a memo issued by the Obama Administration last week, which directed all federal agencies and departments to consider extending the effective date of any regulations which have not yet taken effect so that the new administration can review them. USCIS also is extending the comment period for this rule for an additional 30 days.

The moving target continues…the Federal Acquisition Regulatory Council is scheduled to publish a notice in Friday’s Federal Register (1/30/09), delaying the implementation date of the Federal Contractor E-Verify rule until May 21, 2009. According to the notice , contracting officers are instructed not to include the E-Verify clause in any solicitation or contract awarded prior to May 21, 2009.

The Federal Contractor E-Verify rule was originally scheduled to take effect on January 15, 2009, but the implementation was postponed to February 20, 2009, due in large part to the ongoing federal lawsuit filed by business groups who are challenging the legality of the rule. This latest delay comes as a result of a memo issued by the Obama Administration last week, which directed all federal agencies and departments to consider extending the effective date of any regulations which have not yet taken effect so that the new administration can review them.

This second “extension” of the E-Verify Federal Contractor requirement will be welcome news to some employers who have been scrambling to learn about E-Verify and develop appropriate policies and procedures in time for the deadline. Despite this latest reprieve, employers are cautioned that mandatory E-Verify still appears to be on the horizon, in one form or another.

E-Verify continues to be a hot topic, as members of Congress are now seeking to tack-on E-Verify related provisions to the economic stimulus bill. Specifically, the House Appropriations Committee has approved two amendments to the bill which would re-authorize and expand the E-Verify program.

The first amendment, offered by Representative Ken Calvert (R-CA), would reauthorize E-Verify for an additional four years. Last October, President Bush effectively extended the E-Verify Program until March 6, 2009.

The second amendment, introduced by Representative Jack Kingston (R-GA), stipulates that none of the stimulus funds may be used to enter into a contract with an “entity” that does not participate in the E-Verify program.

The Rules Committee has posted the text of the stimulus bill, officially known as “The American Recovery and Reinvestment Act of 2009″ (H.R. 598), online. The stimulus bill will be formally introduced on Monday, January 26th.

Yesterday, the Obama administration sent a memo to federal agencies and departments, directing them to freeze any pending rules until they’ve had time to conduct a “legal and policy review” of each one. Apparently, this type of directive is normal for incoming presidents, but it does raise an interesting question as to whether the effective dates of the E-Verify federal contractor rule or even the new I-9 rule will be extended.

Although both rules have already been published, the memo from Chief of Staff Rahm Emanuel directs the agencies to “consider extending for 60 days the effective date of regulations that have been published in the Federal Register but have not yet taken effect…for the purpose of reviewing questions of law and policy raised by those regulations.”

Since the E-Verify rule in particular raises substantial questions of law and policy, it seems likely that it may be delayed again…note though, that most insiders still consider its implementation to be inevitable.

A final version of the new Form I-9 has been posted to the USCIS web site to be used by employers on or after February 2, 2009. USCIS revised the form based upon a new interim final rule which alters the list of acceptable documents and also prohibits employers from accepting expired documents as part of the I-9 employment verification process. A summary of the new I-9 rules can be found in our earlier post on the subject.

USCIS will also be publishing a new I-9 employer handbook, which will include updated instructions and sample identity and work authorization documents.

Despite this new form’s availability, employers should continue using the 6/5/2007 version of the Form I-9 until February 2, 2009.

As anticipated, state legislatures across the country have been renewing and introducing new employment eligibility and compliance laws requiring the use of E-Verify. The latest bills to be introduced are from Arkansas, Nebraska, Indiana, and Wyoming.

In Arkansas, State Representative Bill Sample, R-Hot Springs, introduced HB 1093 which would require state agencies to use E-Verify for all new employees and prohibit contractors and subcontractors from entering into new contracts for services within the state on or after July 1, 2009 unless they register and participate in E-Verify as well. The bill also establishes guidelines for the issuance of identification cards and documents by a variety of organizations including companies, service organizations, state and local agencies, public schools, and private educational institutions.

In Nebraska, Senator Brad Ashford introduced the Nebraska Fair and Legal Employment Act (LB 34) , which would require all state contractors to use E-Verify for contracts awarded after January 1, 2010. The bill would also require ALL employers to participate in E-Verify by 2011.

In Indiana , bills were introduced in both the House (H.B. 1098) and the Senate (S.372) that would require all employers in the state to participate in E-Verify by an established date.

Finally, in Wyoming, the House introduced HB 0103 which would mandate the use of E-Verify for all employers in incremental stages. All employers would eventually be required to use E-Verify three years after the effective date.

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.

According to the recently released data from the U.S. Citizenship and Immigration Services (USCIS), more than 100,000 U.S. employers are now participating in the Federal Government’s online eligibility verification program, known as E-Verify. The Internet-based system, operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA), allows participating employers to electronically verify their employees’ eligibility to legally work in the United States. USCIS administers the program.

While the use of E-Verify continues to be voluntary for most U.S. businesses, recent legislative and executive branch actions at both Federal and state level suggest a growing trend to make participation in E-Verify mandatory for more categories of employers. The latest group to be affected by these changes are Federal contractors and subcontractors.

USCIS reported that for FY2009 to date, more than 2 million employment verification queries have been run using E-Verify.  During FY2008, approximately 6.6 million employment verification queries were processed (as compared to a total of 3.27 million in all of FY2007).   The Department of Homeland Security’s FY2009 appropriation legislation, signed into law on Sept. 30, 2008, provided $100 million to continue, expand and improve E-Verify in FY2009.

In a move likely to vastly increase employer participation in the program, Federal contractors and subcontractors will be required to begin using E-Verify starting February 20, 2009. Several states already mandate its use for employers receiving state contracts or grants.  While some businesses welcome E-Verify as a useful tool to keep their workforce legal, business and civil rights groups tend to oppose mandatory employment verification requirements. Legal challenges have delayed but did not stop the planned implementation of the new rule affecting Federal contractors and subcontractors.

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.
Tracker Corp has recently released the latest version of its Form I-9 software, which includes the option of selective use of E-Verify among multiple worksites and for individual employees to meet the latest requirements for Federal and state contractors. Backed by a staff of accomplished attorneys and software designers, Tracker I-9™ offers the most secure solution to electronically prepare, sign, store and manage I-9 forms while complying with the latest E-Verify rules.

Today, the parties to the recent lawsuit challenging the E-Verify Federal Contractor Rule announced that the government had agreed to postpone the implementation date until February 20, 2009. The E-Verify Federal Contractor Rule had been slated to take effect on January 15, 2009, requiring federal contractors and subcontractors to enroll and use E-Verify for all new hires as well as existing employees who directly perform work under the federal contract or subcontract. A notice announcing the suspension will most likely be published in the Federal Register early next week.

According to this latest agreement, federal contracting agencies will not be required to include the E-Verify clause in any contracts awarded or solicitations issued prior to February 20th. In the meantime, the plantiffs in the lawsuit will file expedited briefs with the court in support of their argument that the regulations should not be implemented at all. It remains to be seen whether the court will issue a ruling prior to February 20, 2009, the new implementation date.