E-Verify & I-9 News

In anticipation of the E-Verify federal contractor mandate, the USCIS will be releasing a Supplemental Guide to address specific E-Verify requirements and time periods for federal contractors and subcontractors who are impacted by the rule. The E-Verify Tutorial (available online to E-Verify participants) already makes reference to this document (see image to the right), which will be located in the Online Resources section of your E-Verify account. We’ll make sure to publish this document on our blog as soon as it’s released.

In the meantime, the E-Verify refresher tutorial provides instructions for employers who are already enrolled in E-Verify on how to notify DHS that they are a federal contractor. We’re reproducing some of these instructions below. Of particular interest, is that employers are not required to sign a new MOU.

1. You must update your profile to indicate that you are a Federal contractor. As a Federal contractor, you will be subject to the new Memorandum of Understanding (MOU), which includes language on the verification of “employees assigned to the contract.”

2. If you are already participating in E-Verify, you are not required to sign the new MOU. However, once you have indicated that you are a Federal Contractor in E-Verify, you will be subject to the rules and requirements associated with this profile and have access to all materials specific to Federal Contractors (and verification of “employees assigned to the contract”).

3. If you modify your organization type to and from “Federal Contractor” on the company information page, it will affect your users who are in the process of taking the tutorial. These users will be redirected to and must start over with the appropriate tutorial. Also, if you modify your organization type to a non-Federal Contractor value, existing employees must not be verified.

This is the first in a new series of blog posts which will address and answer your questions regarding Form I-9 and E-Verify compliance. To pose a question, visit our Ask a Question page and fill-in the form provided. We’ll select the best question each week and provide an answer on this blog.

Our first question comes from a technical recruiter who is concerned about using E-Verify for existing employees who are on a covered contract. Here is a summary of the question, which has two parts:

Question: Since the new I-9 (February 2nd and August 7th editions) have different rules for acceptable documents (e.g., expired documents, such as US passport are no longer allowed) , will we have to do a new I-9 for those employees that are on a covered contract? We’re currently using E-Verify for new hires, but how long do we have to be compliant to have all existing employees in the system?

Answer: Once you’ve been awarded a federal contract or subcontract with the E-Verify clause, you will have a choice regarding existing employees: you can use E-Verify for just those that are working on the covered contract OR you can elect to use E-Verify for your entire workforce (if, for example, it’s too burdensome to make the determination of who is on the contract). In either case, you can use a previously completed I-9 form (even one with expired documents) as the basis for the E-Verify query as long as it meets certain requirements that are outlined in the E-Verify MOU. These include: it must be complete (including the SSN); if you accepted a list B document on the old I-9 form, it must be a type which has a photo; if you accepted a green card or EAD, you must have a photo copy of it; and the employee’s work authorization must still be valid. In addition, the MOU indicates that employers must review the old Form I-9 either in person or in communications with the employee to ensure that the employee’s stated basis in section 1 of the Form I-9 for work authorization has not changed.

As for the timing, since you are already using E-Verify, you will have 90 days to initiate verification queries for current employees after you are awarded a covered contract. For those not currently using E-Verify, they get 30 days to enroll and then 90 days from E-Verify enrollment (total of 120 days). Lastly, if you intend to choose the entire workforce option, you have 180 days from election of that option to verify all existing employees hired after November 6, 1986.

Disclaimer: Although our bloggers are legal experts in the field, these answers should not be construed as direct legal advice. Your specific employment situation may involve facts and complications unknown to us. For specific issues and questions regarding I-9 and E-Verify compliance, please contact your immigration or employment counsel.

The United States Citizenship and Immigration Services (USCIS) has posted a new version of the Form I-9 (Rev. 08/07/2009) in PDF on its web site. As anticipated, there have been no new changes to the form, other than the revision and expiration dates.  The USCIS has also stated that employers are free to use either this version or the prior version (Rev. 02/02/2009) until further notice.

The Form I-9 can be downloaded from the USCIS Form I-9 portal page.

In a decision announced this morning, the U.S. District Court for the District of Maryland upheld the E-Verify Federal Contractor Rule which will require certain federal contractors and subcontractors to use the E-Verify system for all new hires and as well as existing employees working on a federal contract. The rule is scheduled to go into effect on September 8, 2009. Once in effect, federal contractors must enroll in E-Verify within 30 calendar days after being awarding a covered contract. Most contractors must then start using E-Verify within 90 days from the date of E-Verify enrollment.

In the court’s 24 page memorandum opinion, Judge Alexander Williams, Jr. addressed both parties request for summary judgment on seven complaints alleged by the plaintiffs. As previously reported, the Chamber of Commerce and other co-plaintiffs argued that President Bush’s executive order and the implementing regulations amending the Federal Acquisition Regulation (FAR) violate existing federal immigration law, exceed statutory authority, constitute improper rulemaking by the Executive Branch, and fail to account for the significant costs to employers.  After weighing the evidence, the court ruled in favor of DHS and the FAR Council on each one of these counts. Here is a summary of the court’s findings on some of the major issues:

1. While Federal immigration law (IIRIRA) does restrict the Secretary of Homeland Security from requiring any person or entity to use E-Verify, it does not apply to the President of the United States or the FAR Council. Had Congress intended anything else, Congress easily could have drafted this section to apply to the President or other agencies.

2. The E-Verify Federal Contractor Rule does not violated federal immigration law because it does not require any person or entity to use E-Verify. The decision to be a government contractor is voluntary and no one has a right to be a government contractor.

3. The executive order by President Bush was properly authorized since it made findings that show that requiring government contractors to use an electronic employee eligibility system will promote economy and efficiency in procurement. The court also noted that the President has broad discretion in this regard.

4. Nothing in federal immigration law explicitly prohibits the Executive Branch from using E-Verify for current employees. Though there is administrative guidance saying that E-Verify should not be used for that purpose, that guidance does not legally prohibit the President from requiring it. If Congress intended it to be illegal to use E-Verify for current employees, then Congress should have made that clear in the statute.

5. The executive order and final rule are permissible actions pursuant to the Procurement Act, since they do not constitute lawmaking for which the Executive Branch lacks constitutional authority.

6. The Final Rule contains a discussion of the regulatory flexibility analysis conducted by the Council which considered the costs that incorrect results produced by E-Verify would have on small businesses. Therefore, the government has not violated the Regulatory Flexibility Act.

In the coming weeks, this blog will focus on specific requirements and exemptions in the E-Verify rule and discuss best practices going forward for federal contractors and subcontractors. Stay tuned for updates.

Today, Los Angeles County supervisors voted to explore requiring local contractors to participate in E-Verify as a condition of doing business with the county. According to the motion agreed to today, the Board will review the E-Verify system and report back in two weeks with recommendations. Los Angeles County is one of the largest counties in the nation, consisting of 88 cities and 10 million residents (as of July 2008). Most of the cities contract with the County to provide a wide array of municipal services.

On the California state level, E-Verify has come under attack by legislators who question its effectiveness and have put forth a bill which would prohibit the state, or a city, county or special district from requiring employers to use E-Verify as a condition of receiving a government contract, applying for or maintaining a business license, or as a penalty for violating licensing or similar laws. The bill (AB 1288) recently passed a Senate vote and now moves back to the Assembly where it was introduced.

In the meantime, E-Verify remains a voluntary program for employers in California. According to the Center for Immigration Studies, California has the second largest  number of employers enrolled in E-Verify at 10,476 as of July 2009. Arizona leads the charge with roughly 31,000 employers enrolled.

The Atlanta Journal-Constitution reports that companies are becoming more concerned about their I-9 and document review processes in light of increasing audits by ICE. As a result, many businesses are contacting their immigration counsel for advice or to request an external audit. Many immigration law firms will conduct I-9 audits and assist in developing proper employer-wide I-9 protocols going forward, including the use of electronic I-9 software.

Before contacting counsel, employers should review their own internal procedures and decide if a formal review is necessary. Tracker Corp maintains a library of useful I-9 and E-Verify resources to get you started, including PowerPoint training slides, best practices, and a sample compliance program.  These items can be downloaded or requested here.

In today’s Federal Register, the USCIS accounced that they are extending the comment period for the E-Verify Non-User Survey and Employee Survey in Arizona, which was originally published on June 2, 2009. Apparently, they are extending the deadline since they did not receive any replies. Comments are now due on September 23, 2009.

If you’re interested in commenting on E-Verify, you can send send your comments to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov, and to the OMB USCIS Desk Officer via facsimile at 202-395-5806 or via e-mail at oira_submission@omb.eop.gov. When submitting comments by e-mail please make sure to add OMB Control Number 1615-0108.

Today, the United States District Court for the District of Maryland heard oral arguments in the E-Verify Federal Contractor lawsuit (Chamber of Commerce of the United States of America, et al. v. Michael Chertoff, et al). As previously reported,  the U.S. Chamber of Commerce and several other organizations filed a federal lawsuit in December last year, challenging the legality of President Bush’s Executive Order and the FAR (Federal Acquisition Council) regulations requiring federal contractors and sub-contractors to use E-Verify. Today’s hearing gave both parties an opportunity to argue on pending motions before the Court. Sources indicate that the judge is expected to issue a ruling on the case within the next week.

If the judge rules in favor of the government, DHS has indicated that it will implement the rule on September 8, 2009. Once in effect, federal contracting officials are instructed to insert the “E-Verify clause” in all new contracts awarded with a performance period longer than 120 days and a value above $100,000. More information regarding the E-Verify Federal Contractor rule can be found in our earlier post last year.

This week, ICE Assistant Secretary John Morton reiterated DHS’ commitment to I-9 and worksite enforcement during several “pen and pad” sessions with Southern California reporters. According to the Wall Street Journal, Mr. Morton announced that ICE intends to increase the number of companies it will audit and systematically impose fines on violators. From the WSJ article: “You are going to see audits regularly and on a larger scale,” Mr. Morton said during a two-day visit to southern California, his first since being appointed four months ago. “You will see the resuscitation of…civil fines.”

In related news, two Directors from the family-owned Yamato Engine Specialists pleaded guilty today to federal charges of aiding and abetting the use of a false statement on immigration forms. As previously reported, 28 workers were arrested for working unlawfully for the manufacturer. In their pleas, the directors admitted that they knew workers at the company submitted false names and social security numbers on the I-9 forms but took no steps to deter the practice. According to the plea agreement, Yamato Engine Specialists is expected to pay a significant fine in connection with the case. For more information, you can read the ICE press release.

The Michigan House Judiciary Committee will consider two E-Verify bills tomorrow (August 19, 2009) which would mandate certain employers in Michigan to use E-Verify. House Bill 4355 would require certain employers who contract or subcontract with public agencies to verify the employment eligibility of new employees though the E-Verify system. House Bill 4969 would prohibit personnel agencies from referring an individual to a public agency for hire without first verifying the individual’s employment eligibility through E-Verify.

The Michigan Chamber of Commerce has issued a press release opposing the bills which can be viewed here. For more information on both bills, you can visit this summary link from the Michigan Legislature web site.

As previously reported, two Michigan counties have approved E-Verify mandates for local contractors.