E-Verify & I-9 News

[Editor’s Note: today’s post is brought to you by guest blogger Katie Nokes Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

E-Verify is the federal government’s current foray into electronic verification of employment authorization of US workers that functions as a complement to— not a replacement for — the traditional paper-based Form I-9 employment verification system. Over the past few years, many employers have found themselves in a “sink or swim” situation as they have been forced into this otherwise optional program by laws mandating their use. Others have voluntarily enrolled in the program. The remaining majority are now finding themselves teetering at the edge wondering whether or not to take the plunge.

E-Verify: Who Should Jump Right In

Businesses required by law should enroll in E-Verify and structure their participation to comply with applicable laws and the terms of the program. Currently many employers are required by state or local law to enroll in E-Verify, and all signs indicate that this trend will continue. Certain federal contractors are also required to use E-Verify. Further, multi-state corporations may consider enrolling nationally to avoid facing the moving target of state-by-state compliance and the associated burden as new state laws are passed. Employers who have previously been the subject of an I-9 audit and related fines should also strongly consider enrolling in the program.

E-Verify: Who Should Stay on Shore

E-Verify use has its drawbacks. These include employer-borne costs of training personnel and allocating resources to correctly administer the program, the addition of an extra step in the hiring process, and the risk of a “false positive” for a new hire that may raise an unnecessary red flag that requires corrective action. For companies with limited HR resources or who would face significant burdens in regularly accessing the online program not required or otherwise inclined to enroll, the costs will not likely justify the benefits. Some employers simply do not want to participate in the “voluntary” program, and can elect this approach unless otherwise required to enroll.

E-Verify: Who Should Test the Waters

As the program is currently structured, employers have options in how they use E-Verify, including limiting use for new hires at only one (or a handful) of hiring sites. Enrolling in the program for use at a single hiring location, for example, does not trigger a nation-wide E-Verify use requirement for all hiring sites of a given company. While E-Verify is imperfect, the federal government has put significant resources into the program and more and more states are imposing E-Verify requirements. Odds are good that most employers will need to at least consider participation at some point in the future.

Enrolling in E-Verify on a limited basis is a good option for employers with the necessary resources to properly administer the program who may otherwise be on the fence. Choosing to participate at one hiring site provides an opportunity to gain familiarity with the program and complete the necessary training and registration on the employer’s own timeline. E-Verify experience may also provide a competitive edge when competing for business. Companies are increasingly adding employment verification compliance provisions to service contracts, which may include current (or perhaps future) E-Verify use. Putting “a toe in the water” provides companies negotiating such contracts an advantage over companies that are not familiar with or currently contemplating at least limited use of the program.

No matter their current E-Verify enrollment status, all US employers should continue to monitor E-Verify related developments to acquire a general understanding of program requirements and any pertinent compliance deadlines.

Disclaimer: The content of this website is for information purposes only and should not be construed as legal advice or a legal opinion on any specific facts or circumstances, nor does it create attorney-client privilege. This blog should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

Share this with your network:

[Editor’s Note: today’s post is brought to you by guest blogger Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]

1. Am I complying with applicable laws requiring E-Verify use?

E-Verify is an online service administered by the federal government that allows employers to run information about new hires through Department of Homeland Security and the Social Security Administration databases to attempt to verify work authorization.

In the absence of comprehensive federal immigration reform, and particularly in the face of high levels of unemployment, states and local governments are stepping hard into the employment verification debate. A number of states, counties and municipalities have passed laws that mandate use of the otherwise voluntary E-Verify program.

E-Verify laws warrant a close and careful look by all employers to determine when, if and how E-Verify mandates may affect them. Employers already using E-Verify should confirm they are making any necessary updates to their program use to meet state requirements (for example, adding hiring sites in affected states, if they are currently only using E-Verify in other locations).

Currently only certain federal contractors are required to use E-Verify under federal law. More expansive legislation that would require E-Verify use by all employers has been introduced in both the House and the Senate, but such federal requirements are not currently in effect.

2. Does my company have a contract that includes an E-Verify provision?

Employers should be monitoring all federal contractors for an E-Verify clause. Additionally, state contractors are also increasingly required to use the program, and private employers are now including immigration compliance provisions to the terms of service contracts that include required use of E-Verify now or in the future. Employers should review all contracts for any language that may require their use of the program.

3. If my company will be required to use E-Verify, what steps should we be taking now to prepare?

Employers should note any upcoming deadlines for required use of E-Verify. A company facing an upcoming E-Verify requirement should familiarize itself with the E-Verify Memorandum of Understanding, notice and employer requirements of the program, and make internal decisions and designations about how the program will be administered and by whom. Before the internal start date of E-Verify use, a company should plan to train appropriate human resource professionals and update its employment verification compliance policy to reference and incorporate its use of E-Verify.

4. Should my company voluntarily enroll in E-Verify to avoid the burden of monitoring local and state developments?

As states and local governments continue to pass E-Verify laws, employers must closely and regularly monitor specific requirements where they do business. Multi-state employers may consider nation-wide voluntary participation in the program to avoid the burden of complying with varying state requirements, depending on the employer’s views relating to the program and ability to satisfy E-Verify requirements.

5. How well does my company currently comply with employment verification requirements?

Most companies are aware of the federal requirement that companies verify the employment authorization of new hires by completing Form I-9. Employers should evaluate current employment verification compliance practices and consider a self-audit to confirm the employer’s Form I-9s are properly prepared and retained.

E-Verify is a supplement to, not a replacement for, the current I-9 verification system. Employers currently enrolled in E-Verify must still fulfill all obligatory employment verification requirements under current federal law, such as completing and retaining Form I-9. Employers considering enrolling in E-Verify should confirm they are currently meeting all federal employment verification requirements before undertaking additional responsibilities and requirements relating to E-Verify.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

Share this with your network:

[Editor’s Note: today’s post is brought to you by guest blogger John Manley, U.S. Immigration Attorney and Co-Liaison to U.S. Customs and Border Patrol.]

Taps for E-Verify in CA?

On October 9, 2011, Governor Jerry Brown signed into law A.B. 1236. A.B. 1236 prohibits local governments from making E-Verify mandatory for employers within their borders.

Here is the full text of the bill: A.B. 1236

As part of the bill, the Legislature made a number of interesting findings:

1) A 2007 independent evaluation commissioned by the federal Department of Homeland Security found that the electronic employment verification database was still not sufficiently up to date to meet requirements for accurate verification. This has led to employers being unable to hire employees in a timely manner and kept workers from earning wages.

2) Mandatory use of an electronic employment verification program would increase the costs of doing business in a difficult economic climate. The United States Chamber of Commerce estimates that the net societal cost of all federal contractors using the E-Verify Program would amount to $10 billion a year, federally.

(3) California businesses would face considerable odds in implementing such a program. Employers using the program report that staff must receive additional training that disrupts normal business operations. If E-Verify had been made mandatory for all [California] employers in 2010, it would have cost businesses $2.7 billion, $2.6 billion of which would have been borne by the small businesses, which drive our economy.

Cities such as Temecula, Lancaster, Murrieta, and Lake Elsinore did have existing E-Verify ordinances requiring private employers to use E-Verify. After A.B. 1236, these ordinances are now null and void.

Under A.B. 1236, therefore,except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system, including under the following circumstances:

(a) As a condition of receiving a government contract.

(b) As a condition of applying for or maintaining a business license.

(c) As a penalty for violating licensing or other similar laws.

“Employer” means an employer other than the state, or a city, county, city and county, or special district. Local government entities may still require other government entities to use E-Verify under A.B. 1236, and as required by federal law, or as a condition of receiving federal funds.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

To learn more about how I-9 Compliance Software can help you comply with Form I-9 and E-Verify requirements, click here.

Share this with your network:

E-Verify released an updated list of questions and answers addressing Federal contracts that contain a Federal Acquisition Regulation (FAR) clause and the resulting E-Verify requirements. A full version of the document, which also covers a wide range of other topics, is available on the E-Verify web site. This revised FAQ list apparently replaces the one that was mistakenly released and then retracted last month as we reported.

Tracker will continue to monitor the E-Verify website and be sure to provide updates as necessary. While FAQs can serve as a useful source of information, Tracker encourages employers to engage counsel on all employment and immigration issues, especially for matters that involve the complex rules that govern Federal Contracts and E-Verify.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel.

Today, the E-Verify Team formally retracted the Frequently Asked Questions for federal contractors that were distributed to webinar participants by email last Wednesday, March 17th. As previously reported, these FAQs contained some new guidance concerning E-Verify setup and the tentative nonconfirmation (TNC) process. According to today’s announcement, the FAQs were sent in error, and E-Verify is seeking further clarification on a few of the pointers before posting a new a version on its web site. Stay tuned for the constantly evolving E-Verify rules!

In other news, the DHS issued a 30 day extension of its E-Verify data collection survey, which is required under the Paperwork Reduction Act of 1995 for “information collections” by the federal government. The notice was originally announced on January 6, 2010, but apparently, DHS did not receive any responses. Written comments or suggestions about the E-Verify process can be sent via fax to 202-272-8352 or via email to rfs.regs@dhs.gov (with the subject line OMB-55).

DHS will use this information to evaluate how the E-Verify program is working nationally, whether employers are using it as intended, and the positive and negative impacts if E-Verify were to become mandatory. Comments will be accepted until April 26, 2010.

The Department of Homeland Security (DHS) has announced its intent to publicly display information on businesses using E-Verify on searchable areas of its web site.  According to the DHS, the release of this information is allowed under the terms noted in the Memorandum of Understanding (MOU), which must be executed by all employers enrolling in the E-Verify program. A careful reading of the MOU reveals that an employer must agree that E-Verify is not confidential information and may be disclosed as authorized or required by law and DHS or SSA policy, including but not limited to, Congressional oversight, E-Verify publicity and media inquiries, determinations of compliance with Federal contractual requirements, and responses to inquiries under the Freedom of Information Act (FOIA). Presumably, the disclosure of this information on the DHS web site falls under the very wide scope of “DHS policy.”   

In particular, DHS may post an employer’s registered business name, contact address, workforce size, employee verification option (all new hires or entire workforce), and overall E-Verify volume (number of queries). Now more than ever, employers registering as federal contractors should be vigilant in following all of the E-Verify rules, especially since their hiring activity and other information may now be subject to increased public scrutiny.

This E-Verify announcement is currently available on the E-Verify home page as well as the alert section of employers’ E-Verify dashboard.

This week’s “Ask a Question” concerns whether the E-Verify federal contractor rule applies to organizations that accept Medicare reimbursements.  In general, the rule only applies to certain federal contracts awarded on or after September 8, 2009, that contain a performance period longer than 120 days and a value above $100,000. Contracts awarded after this date must include the “E-Verify clause” requiring the contractor to participate in E-Verify.

Unfortunately, the issue of whether Medicare reimbursements qualify under this definition has not been specifically addressed in the E-Verify federal contractor regulation and the DHS has declined to offer specific guidance. In a document published earlier this year, DHS wrote “[t]he question of whether a contract is subject to the Federal Acquisition Regulations (FAR) and amendments requiring use of E-Verify for federal contractors awarded qualifying federal contracts is specific to the terms of the contract.”

If we look to the rule, however, it seems clear that the E-Verify requirement was intended to apply to procurement contracts in which a federal agency is acquiring supplies or services for use by the federal government. Under the Medicare program, however, the Medicare beneficiary acquires care from a provider of his or her choice, which is then reimbursed by the federal government. Based on this reasoning, it is possible that an organization receiving such reimbursements will not be subject to the E-Verify requirement. As always, it’s best to discuss these matters with your internal contract experts or the contracting federal agency.

To pose a question for next week’s blog, visit our Ask a Question page and fill-in the form provided.

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.

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.

This week’s “Ask a Question” concerns one of the most vexing problems for employers: how do I determine whether I have (or can expect to have) a federal contract that will subject my organization to the E-Verify mandate?  The recently released Federal contractor supplement guide attempts to answer this question in section 5.2  as follows:

Your government contracting official, not the E-Verify program, will decide whether your Federal contract qualifies for the E-Verify clause if it meets the following criteria:

• The contract was awarded on or after the Federal contractor rule effective date of September 8, 2009 and includes the FAR E-Verify clause.
• The contract has a period of performance that is more than 120 days.
• The contract’s value exceeds the simplified acquisition threshold of $100,000.
• At least some portion of the work under the contract is performed in the United States.

While instructive, this answer still poses a problem for HR and I-9 Managers in large organizations that are not likely to be in contact with government contracting officials. How do you get the word out to the right people in your organization? One method that we recommend is to draft a memo to internal stakeholders explaining these new worker verification requirements and actions which must be taken for new and amended contracts with the federal government. You should also send them a copy of the “E-Verify Clause” so that all contracts can be analyzed for this important language. The E-Verify clause is available in the amended Federal Acquisition Regulation at section 52.222-54. For your convenience, we’re including a copy of the relevant section here.

To pose a question for next week’s blog, visit our Ask a Question page and fill-in the form provided.