E-Verify & I-9 News

The Department of Homeland Security (DHS) recently published final regulations that amend interim rules promulgated in June 2006 which govern electronic signatures and storage for employers who complete and retain the Form I-9 in an electronic format. The Final Rule affirms that employers can complete, sign, scan, and store the Form I-9 electronically (including an existing Form I-9).  DHS also provides much needed clarification on certain technical requirements including more options for data compression, fewer storage requirements, and more options for storage systems, among others.

The follow is a summary of the key changes made by this Final Rule:

Employers must complete a Form I-9 within three business (not calendar) days. As we reported, USCIS recently provided clarification on when employers should start counting.

Employers may use paper, electronic systems, or a combination of paper and electronic systems. This clarifies that an employer may choose whether or not they want to create digital images or data of their historical paper I-9 forms when converting to an electronic I-9 system.

Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations, including accessibility and the ability to produce a reasonable facsimile or copy of the I-9.

Employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected.

Employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

The final rule also makes technical and conforming amendments to the regulations including the requirement that an electronic I-9 storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”

At first glance, these are welcomed changes that remove some of the roadblocks that may have kept employers from adopting an electronic I-9 system as part of their I-9 compliance program. Employers who are ready to switch to an electronic I-9 solution should make sure the system they adopt meets and exceeds the requirements in the Final Rule, such as Tracker I-9 .

More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9. For further guidance on the electronic signing and storage of the I-9 and to review the final rule in its entirety please visit the amendment as published in the Code of Federal Regulation.

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.

In December 2009, the government of Puerto Rico passed new sweeping legislation that, effective July 1, 2010, invalidates all Puerto Rican birth certificates issued before July 1, 2010. A common reaction to this news is to ask the obvious. Why the drastic change?  For an answer, we looked to the Puerto Rico Federal Affairs Administration (PRFAA) fact sheet, which provides an overview of the rationale behind the new legislation. In brief, it appears that the goal of this mandate is to reduce fraud and identity theft.

So how does the new statute impact the I-9 process? At the time of this post, the Department of Homeland Security (DHS) has yet to officially release published instructions to employers concerning this matter. However, Tracker has learned on good authority that according to the U.S. Citizen and Immigration Service – Verification Branch the following guidance is expected to be included in the next revision of the DHS I-9 Handbook for Employers (M-274):

Beginning July 1, 2010, all certified Puerto Rico birth certificates issued before July 1, 2010 will be invalid. The statute also prohibits, as of January 1, 2010, public or private entities from retaining [original Puerto Rican] birth certificates.

After July 1, 2010, the Vital Statistics Office of Puerto Rico will begin issuing a new type of certified birth certificate to citizens from Puerto Rico. The new certificates will be acceptable List C documents for Form I-9 purposes.

The prohibition on retaining Puerto Rico birth certificates does not prevent employers from retaining photocopies or electronic copies of these certificates during the Form I-9 process, if they choose to do so. The statute only prohibits retention of actual certified birth certificates. Employers who choose to retain copies of employee documentation must do so for all employees, regardless of national origin or citizenship status, to avoid discriminatory practices.

For further information about E-Verify or Form I-9 employers may call the E-Verify Customer Support at 1-888-464-4218 or send an email to: e-verify@dhs.gov.

Tracker spoke with a DHS E-Verify Customer Support Representative who confirmed these guidelines, with the caveat that the exact language is subject to change pending approval by the DHS policy review board. The DHS Representative also verified that a receipt showing that the employee has applied for, but not yet received, a new Puerto Rican birth certificate is acceptable for completing Section 2 of a Form I-9 under the “receipt rule.” As a reminder, in certain circumstances, receipts for application of a replacement document can be accepted in lieu of original documents in the I-9 process, in which case an employee must present the replacement document to complete Form I-9 within 90 days from date of hire or, for reverification, the date employment authorization expires.  You can find more information on the “receipt rule” in the M-274 Handbook.

Additional information on the new Birth Certificate law is available on the PRFAA website. In order to obtain a new birth certificate, individuals born in Puerto Rico will need to submit a completed Birth Certificate Application Form and remit any applicable fees to the Puerto Rico Vital Statistics Record after the new law takes effect.

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.

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.

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.

Today, the interim final rule revising the Form I-9 and list of acceptable documents was published in the Federal Register with an effective date of February 2, 2009. As previously reported , the new rule calls for minor changes to the Form I-9, revises the list of acceptable documents and stipulates that employers can no longer accept expired documents. The entire rule is available online in PDF and also includes an “informational” or sample copy of the new Form I-9 that will be made available to employers on the USCIS web site. Until the new rule goes into effect, employers should continue using the currently valid June 5, 2007 version.

The USCIS will be publishing a new rule which will revise the list of documents that employers can accept to verify the identity and employment eligibility of new hires. The new rule also revises the Form I-9 and stipulates that employers can no longer accept expired documents. Currently, the U.S. passport and all List B documents are acceptable, even if expired. The rationale for this change is that expired documents are prone to fraudulent use (counterfeiting) and newer documents are more likely to contain security features which make them less vulnerable. It is important to note that documents without an expiration date (such as a social security card) are deemed “unexpired” under the new rule.

Among the proposed changes, the rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A.  USCIS no longer issues these cards, and all that were in circulation have expired.

One of the most crucial aspects of the new rule is the timing – employers must use the revised I-9 form for all new hires (and reverifications) beginning 45 days after it’s been published in the Federal Register. Experts in the field predict that the USCIS may publish the rule early this week, which means that it could go into effect by early February. Once in effect, employers must use the new form or face civil monetary penalties.

The full announcement is posted on the USCIS web site and available in PDF.

The Department of Homeland Security (DHS) has published the long-awaited final rule on the use of E-Verify by federal contractors and subcontractors, which will take effect starting Jan. 15, 2009. The substance of the rule is mostly the same as what was initially proposed in June 2008, although the DHS has limited its overall use by stipulating that it will only apply to federal contracts with a period of performance longer than 120 days and value above $100,000. As before, it will not apply to contracts for commercial off-the-shelf items (those offered to the government without modification, in the same form in which they are sold in the marketplace).

Those employers affected by the rule will need to use E-Verify for all new hires as well as existing employees who will directly perform work under the federal contract. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. Within 90 days from the date of enrollment, contractors must begin to initiate verification queries for employees already on staff who will be working on the contract and begin using the system to verify newly hired employees.

The following is a summary of some of the main points of the final rule:

• The final rule amends the Federal Acquisition Regulation and requires Federal contractors to use E-Verify for all new hires as well as existing employees who will directly perform work under the federal contract.
• The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).
• The rule only covers subcontractors if a prime contract includes the clause.  For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.
• When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date.
• Within 90 days from the date of enrollment, contractors must begin to initiate verification queries for employees already on staff who will be working on the contract and begin using the system to verify newly hired employees.
• Institutions of higher education, state and local governments, and Indian tribes will be only be required to E-verify existing or new employees assigned to work under a federal contract; they do not have to use E-Verify to verify the work eligibility of all new hires.
• The rule applies only to employees working in the United States, which is currently defined to include the fifty States and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

The United States Citizenship and Immigration Services (USCIS) has posted an FAQ and a Fact Sheet which provides more information. The entire rule is available for viewing on the Federal Register Web site in PDF format.