With only hours remaining before the end of the fiscal year, the Senate today approved a one month stop-gap spending measure, effectively extending the E-Verify program through October 31, 2009. As previously reported, the House passed the continuing resolution last week, and the bill now heads to the White House for President Obama’s signature. The Senate Committee on Appropriations press release is available below.
The Senate also approved a $4.7 billion legislative branch spending bill, which provides funding for congressional offices and related agencies. Lawmakers must now work on the remaining 11 spending bills, including the DHS bill for funding E-Verify. Stay tuned for more updates.
This week’s “Ask a Question” concerns how to handle rehired employees who have already been processed through E-Verify. If you have a revolving door of employees, this topic may be of interest to you.
Question:We are looking for some direction regarding how to handle employees that are being rehired. If we rehire an employee that we have previously ran through E-verify do we need to do so again, if we have access to their initial E-verify work authorization verification? Obviously if the employee’s temporary work authorization had expired we would need to do so. Also, if there are any resources that you could direct me to so that I can further research this topic I would greatly appreciate it.
Answer: This is one of those areas where E-Verify guidance conflicts with I-9 rules and practice. In the I-9 realm, it’s well established that employers may rely on a previously completed I-9 form for an employee who is rehired within 3 years as long as he or she is still authorized to work. E-Verify, however, does not distinguish between a rehire and a new hire. So if your organization is a participating E-Verify employer and you hire OR rehire an employee, you must E-Verify that employee, even if the person has already been submitted by your organization. This guidance was originally provided in January of this year during a DHS webinar. A copy of the question and answer is provided here.
As far as the I-9 is concerned, your organization can use the information in the previous (historical) I-9 for E-Verify if the employee is rehired within 3 years of the completion of the original I-9. The historical I-9 would also have to indicate continuing employment authorization and otherwise comply with the E-Verify requirements (List B with photo, SSN provided, etc.)
To pose a question for next week’s blog, visit our Ask a Question page and fill-in the form provided.
Today, the House-Senate Committee on Appropriations approved a stopgap spending measure to allow continued government operations of various programs, including E-Verify, through October 31, 2009. As previously reported, this measure is necessary since Congress has failed to complete work on any of the 12 annual spending bills for agency budgets that it passes each year. The combined measure is slated for a House floor vote tomorrow. The conference summary is available on the House Appropriations web site here.
The Department of Homeland Security (DHS) has made changes to the federal contractor designation in E-Verify, allowing organizations to select either “Federal Contractor with E-Verify Clause” or “Federal Contractor without E-Verify clause” when enrolling or updating their profile. In a memo published this week, DHS explained that many companies had incorrectly identified their organization as a “Federal Contractor” in the E-Verify system prior to the September 8th effective date even though they did not yet have a contract with the E-Verify clause.
As a result of these changes, if you selected the former designation of “Federal Contractor” when you enrolled or updated your organization’s profile before September 8th, your designation has been automatically set to Federal Contractor without E-Verify Clause (if you have not taken the federal refresher tutorial) or Federal Contractor with E-Verify Clause (if you have taken the tutorial). DHS advises that you check your federal contractor status and make any appropriate adjustments.
Regardless of these administrative changes, it is important to remember that your organization should not begin E-verifying existing employees until you are awarded a federal contract that includes the E-Verify clause and have updated your profile. Using E-Verify for existing employees before these steps is prohibited under the Memorandum of Understanding (MOU).
The memo explaining this change is available in your E-Verify account and reproduced below.
With time running out on E-Verify and other federally funded programs, House leaders are considering stopgap legislation this week to keep the government in operation beyond September 30th, the close of the fiscal year. As previously reported, both the House and Senate have proposed extending the E-Verify program as part of the fiscal year 2010 DHS appropriations bill, but have yet to work out differences. The House version proposes a two year extension, while the Senate bill calls for permanent reauthorization along with a requirement that federal contractors and subcontractors use the system for all new hires and employees assigned to a contract.
According to CongressDaily, House leaders will likely implement the stopgap measure (known as a continuing resolution) through the end of October, although the exact date could easily change. The additional month will give lawmakers time to finish work on the 12 annual appropriations bills, which provide funding for numerous activities, including national defense, education, homeland security, and general government operations.
In related news, Senator Chuck Grassley wrote a letter today to the chairman and ranking member of the Senate Appropriations Committee, pressing them to retain his E-Verify amendment (#1415) which would allow all employers (even those who are not federal contractors) to voluntary check existing employees through E-Verify as long as they do so within ten days of election. Senator Grassley argues that the short time period will prevent employers from targeting certain workers by claiming that they are “still working on” verifying the remainder of their workforce. Under the Senator’s plan, if an employer wishes to check existing workers, it must then check them all.
A copy of Senator Grassley’s letter to the Senate Appropriations Committee is available here. We’ll continue to provide timely updates as Congress debates the future of E-Verify.
This week’s “Ask a Question” concerns an important issue of semantics: what should an employer enter for the “hire date” requested by the E-Verify system? Much of the E-Verify literature, including DHS presentations, has indicated that the “hire date” is the day on which the employee accepts the position. The I-9 regulations, however, define “hire date” as the first day the employee starts work, which may be different.
Faced with this confusion, many employers have been entering the employee’s actual start date into E-Verify, to be consistent with the I-9 form. The problem with this scenario is that the E-Verify system will not allow a hire date in the future, so these employers cannot perform the E-Verify query in advance, which is allowed by DHS as long as an offer of employment has been accepted and the I-9 form has been completed.
We recently posed this question to E-Verify staff and received confirmation that in such a scenario, the E-Verify hire date can be the same date on which the E-Verify initial verification query is performed, or any date in the past (such as the date of job acceptance or date of I-9 completion). The E-Verify staff indicated that they will develop additional materials to clarify the hire date concept, although there was no timeline given for its release.
To pose a question for next week’s blog, visit our Ask a Question page and fill-in the form provided.
The owner of a southwest Missouri roofing company has pleaded guilty to hiring, contracting and subcontracting to hire undocumented workers while knowingly accepting falsified I-9 forms. According to the plea agreement, the owner admitted that he knew his subcontractor’s employees were not authorized to work, but did nothing to terminate them or sever his relationship with the subcontractor. In a separate but related case, the subcontractor pleaded guilty to harboring charges and admitted that he had gathered copies of fake ids and prepared falsified I-9 forms in order to avoid detection.
In a press release posted today, ICE reports that the owner also agreed to forfeit $185,363, which represents the amount of proceeds obtained as a result of the offense. The owner will also receive 5 years probation and must implement an employment-compliance plan.
In a press release issued yesterday, ICE is reporting that George’s Processing Inc., a southwest Missouri poultry-processing plant, has paid a $450,000 administrative fine as a result of a worksite enforcement investigation conducted by ICE in 2007. As part of the settlement agreement, George’s has agreed to train its human resource managers and employees on proper Form I-9 procedures, and to establish a compliance program to ensure that its hiring and employment practices are in order.
The May 2007 enforcement action at George’s poultry plant led to administrative arrests of 136 undocumented workers, some of whom were later prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company’s hiring personnel were subsequently convicted of criminal charges for knowingly hiring the undocumented workers.
In announcing this settlement, ICE reminded employers that they have implemented a new, comprehensive strategy to reduce the demand for unauthorized employment by focusing their resources on auditing and investigating employers who are suspected of cultivating and hiring undocumented workers. In addition, ICE has also been increasing the number of random Form I-9 audits on all employers, regardless of size or industry. For more information on these initiatives, please browse our blog posts on ICE enforcement.
The new director of U.S. Citizenship and Immigration Services, Alejandro Mayorkas, held an informal “pen and pad” session with reporters yesterday where he outlined the agency’s commitment to towards improving its information technology as they prepare for the possible expansion of E-Verify to all employers. Although the USCIS has not yet developed detailed plans or budget estimates, Mayorkas did mention ensuring E-Verify has the ability to handle a surge in the number of queries and broadening the scope of verification to include how long a person has been in the country.
According to new sources, the agency is also evaluating a way to use a person’s biometrics, as advocated by Senator Schumer during a hearing in July. With healthcare reform dominating the political landscape, Congress has in no way provided any sort of timeline for tackling immigration, although advocates who favor reform are hoping to see a bill by next spring.
For more information, check out the Morning Roundup – September 15th on DHS’s aptly named site, the Blog @ Homeland Security.
The new director of U.S. Citizenship and Immigration Services, Alejandro Mayorkas, held an informal “pen and pad” session with reporters yesterday where he outlined the agency’s commitment towards improving its information technology as they prepare for the possible expansion of E-Verify to all employers. Although the USCIS has not yet developed detailed plans or budget estimates, Mayorkas mentioned that the E-Verify system will need to have the capacity to handle a surge in the number of queries once a nationwide mandate is established. He also indicated that USCIS may expand the scope of verification by tracking how long a person has been in the country and using a person’s biometrics, as advocated by Senator Schumer during a hearing in July.
With healthcare reform dominating the political landscape, it’s unlikely that Congress will tackle immigration anytime soon, although reform advocates are hoping to see a bill by next spring. For more information, check out the Morning Roundup – September 15th on DHS’s aptly named site, the Blog @ Homeland Security.
As part of our ongoing analysis of the recently implemented E-Verify federal contractor rule, today’s blog will focus on some unique considerations for university and college employers that may be subject to these new requirements.
My university or college participates in federal student loan and Pell grant programs. Does this make us a federal contractor?
The definition of “contract” in the federal contractor rule explicitly excludes grants and cooperative agreements so these types of arrangements will not be subject to the E-Verify requirement. Universities and colleges may, however, have contracts with federal agencies to conduct research and development in a variety of areas, including national defense, space science, applied research, biomedical, and national health, to name a few. According to the Federal Procurement Data System, almost $8 billion in contracts (excluding grants or cooperative agreement) were awarded to educational institutions in FY 2007. For these types of contracts, the university or college will be required to participate in E-Verify. Failure to comply can result in loss of federal contracts and debarment from future federal contracts.
Assuming we are a federal contractor, do we have to use E-Verify for all our of employees, including numerous temporary foreign national hires?
Under the federal contractor rule, Institutions of Higher Education are not required to use E-Verify for all new hires, and instead may elect to verify only those employees assigned to a federal contract. Universities and colleges were given this exemption by the FAR Council in light of the sheer number of student employees with intermittent employment and the resulting burden on these entities. On a cynical note, the FAR Council also weighed the fact that many universities and colleges would be more likely to insist on additional grant funding if they weren’t given some sort of exemption, and this was the lesser of two evils for the government.
It is important to note, however, that universities can still choose to use E-Verify for their entire workforce, should they find the process of figuring out the employees assigned to a contract to be too difficult. As previously mentioned, employers electing this method must provide notice to the DHS (through their E-Verify account) and initiate verification of the entire workforce within 180 days.
