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.]

So you’ve taken the plunge and enrolled in E-Verify. Here are best practice tips to avoid the less-obvious pitfalls of E-Verify use.

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.

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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 mandate for federal contractors to use E-Verify has been delayed again (4 times and counting), with the new effective date being set for September 8, 2009. The official notice of the delay has been published in the Federal Register.

The federal contractor E-Verify rule was originally scheduled to take effect on January 15, 2009, but the implementation has now been postponed four times due in part to the federal lawsuit filed by business groups as well as the ongoing debate surrounding immigration reform under the Obama administration.

Insider sources indicate that there is still strong bi-partisan support for some form of mandatory electronic verification (for both federal contractors and all employers), but it remains to be seen how the Administration will resolve some of the more controversial provisions of the current rule. In particular, many business groups have been lobbying against vicarious liability for subcontractors and E-Verification of an employer’s existing workforce.

Regardless of how the rule turns out, employers should start preparing for electronic verification now by auditing their current I-9s, transitioning from paper to electronic I-9s, and devising proper policies and procedures for this new era of electronic employment verification. Employers are encouraged to request a free E-Verify and Form I-9 HR Toolkit from Tracker I-9 to help prepare for these new requirements.

The federal government is once again delaying the effective date of the E-Verify requirement for federal contractors, which mandates E-Verify use for all new hires as well as existing employees who will directly perform work under a covered federal contract. The new effective date of the rule will be June 30, 2009. An advance notice announcing the change is available here.

The federal contractor E-Verify rule was originally scheduled to take effect on January 15, 2009, but the implementation has now been postponed three times due in part to the ongoing federal lawsuit filed by business groups as well as the transition between presidential administrations.

This third “extension” of the E-Verify federal contractor requirement will be welcome news to some employers, as it affords them additional time to develop appropriate policies and procedures and properly evaluate an electronic I-9 and E-Verify solution. Employers are encouraged to request a free E-Verify and Form I-9 HR Toolkit from Tracker I-9 to help prepare for the eventual implementation of this rule.

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.

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.

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.