With more than half a year behind it, the new administration has clarified its approach to immigration compliance enforcements.
E-VERIFY FOR FEDERAL CONTRACTORS TO BE IMPLEMENTED SEPTEMBER 8, 2009
In early July, Department of Homeland Security ("DHS") Secretary Janet Napolitano announced the implementation effective September 8, 2009 of the Federal Acquisitions Regulatory Council ('FAR') Final Rule requiring certain federal contractors to use E-Verify. The implementation of the Final Rule was postponed on four occasions to permit the new administration opportunity to re-evaluate the rule. Soon after the FAR Final Rule was announced, litigation was filed to challenge the Final Rule. On August 26, 2009 the federal district court rejected all the arguments raised by the plaintiffs in the litigation and granted the government's motion for summery judgment and upheld the Final Rule. It is now uncertain whether the decision will be appealed and federal contractors should plan for implementation of the Final Rule on September 8, 2009.
The Final Rule was issued to amend the Federal Acquisition Regulation and implements Executive Order 12989 issued by President Bush directing all executive agencies and departments of the federal government to require federal contractors and certain sub-contractors to verify the employment eligibility of: (1) all persons hired during the contract term who perform employment duties within the United States; and (2) all persons assigned by the contractor to perform work within the United States on the contract.
Contracts/Sub-Contracts Covered by the Final Rule
The Final Rule provides that all solicitations and contracts that exceed $100,000 (simplified acquisition threshold) shall require use of E-Verify.
• Exempted from the requirement are contracts that are: (1) for commercially available off-the-shelf ("COTS") items and related services; (2) less than $100,000; (3) for periods of less than 120 days; and (4) for work that will be performed outside the United States. COTS are commercial items sold in substantial quantities in the commercial market place and offered to the federal government in the same form that is available in the commercial market place or with minor modifications. Nearly all food and agricultural products fall within the definition of COTS items.
• For indefinite-delivery/indefinite-quantity contracts the employment eligibility verification clause would be included for future orders if the remaining period of performance extends at least six months after the implementation date.
• Sub-contractors will also be subject to the E-Verify requirements for sub-contracts over $3,000 for services or for construction. Sub-contracts for supplies are not included in the Final Rule.
The Final Rule sets out timelines for implementing the E-Verify procedure.
• If the contractor is not enrolled in E-Verify at the time of contract award: (a) contractor must enroll in E-Verify within 30 calendar days of contract award; (b) within 90 calendar days of enrollment in E-Verify, the contractor must begin to use E-Verify for all new hires working in the United States whether or not assigned to the contract within three business days after the date of hire; and (c) for each employee assigned to the contract, initiate E-verification within 90 calendar days after date of enrollment in E-Verify or within 30 calendar days of the employee's assignment to the contract (whichever date is later).
• If enrolled in the E-Verify at the time of contract award, the contractor shall use E-Verify to initiate verification of all new hires working in the United States whether or not assigned to the contract within three business days after the date of hire. If enrolled in E-Verify less than 90 days, within 90 calendar days after enrollment, the contractor must initiate E-Verify verification of all new hires of the contractor working in the United States whether or not assigned to the contract within three business days after the date of hire. For employees assigned to the contract, the contractor shall use E-Verify within 90 days after date of contract award or within 30 days after assignment to the contract whichever date is later.
• For contractors who are an institution of higher education, a state or local government, a recognized Indian tribe or a surety performing under a takeover agreement entered into with a federal agency pursuant to a performance bond, the contractor is required to E-Verify only employees assigned to the contract, whether existing employees or new hires.
• The requirement to E-Verify employees assigned to the contract covers those employees hired after November 6, 1986 who are directly performing work in the United States under the contract. An employee is not considered to be directly performing work if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties applicable to the contract.
E-Verify would not be required of employees who were previously verified by the contractor in E-Verify or who hold an active security clearance of confidential, secret or top secret from the federal government. Contractors may elect to verify all existing employees hired after November 6, 1986 rather than just those assigned to the contract.
Federal contractors will be required to enroll in the E-Verify program and execute a Memorandum of Understanding ("MOU") with Department of Homeland Security ("DHS"). The E-Verify program is an internet-based system operated by the USCIS and the Social Security Administration ("SSA") and verifies employee information against USCIS and SSA databases and issues confirmation or non-confirmation of that information. If confirmation of identity and employment eligibility is established, the contractor will have a rebuttable presumption that it has not violated immigration law with respect to the hiring.
If the E-Verify program cannot initially verify the work authorization of the employee, it will issue a non-confirmation which may be challenged. An employee must be permitted to continue working until final non-confirmation is issued and then the employer is required to terminate the employee. If the employer has grounds to believe the final non-confirmation is in error, the employer may still allow the employee to work, but the employer must inform DHS of its decision to retain the employee and if the employee is later found to be unauthorized, the employer will be subject to a rebuttable presumption that it knowingly employed an illegal alien.
Under the Final Rule, once enrolled in the E-Verify program, the contractor must comply with the MOU or face suspension or debarment. Upon completion of the federal contract, the contractor may terminate participation in E-Verify.
For background information about the FAR E-Verify final rule, see the Immigration Update, December/2008 "Immigration: Mandated E-Verify for Federal Contractors" article on the Bose McKinney & Evans web site.
NO-MATCH RULE WITHDRAWN
By proposed rule published August 19, 2009, DHS announced its proposal to rescind the No-Match Regulations promulgated in August 2007. The proposal to rescind the No-Match Regulations resulted from DHS's decision to focus employment enforcement efforts and resources on increased compliance through employment verification, use of E-Verify, and its IMAGE programs. IMAGE is the ICE Mutual Agreement between Government and Employers partnership initiative that promotes best practices for obtaining a legal workforce through E-Verify and other DHS compliance steps. Comments on the proposed rule will be accepted through September 18, 2009 and the No-Match Regulations remain subject to litigation in federal court which has blocked implementation of the Regulations.
The to-be-rescinded No-Match Regulations detailed an employer's obligations to respond to Social Security Administration ("SSA") "no-match" letters and notices from DHS that an employee's employment authorization documents presented in completion of the I-9 Employment Verification form do not match DHS records.
Under the Immigration and Nationality Act, it is unlawful to employ an alien knowing the alien is unauthorized to work and an employer may be in violation of the Act by having constructive knowledge that the employee is unauthorized to work. No-match letters are sent by the SSA when a sufficient number of social security numbers reported by an employer do not match SSA records. The letters, entitled an "Employer Correction Request", often reminded employers of the importance of providing correct social security numbers and encouraged them to correct their records. The no-match letters importantly advised employers that they should not use the no-match letter to take adverse action against the employee and doing so may in fact violate state and federal law. Pending the outcome of the litigation over the No-Match Regulations, the SSA suspended issuance of no-match letters. DHS sends the "Notice of Suspect Documents" after an I-9 audit if it is unable to confirm in its records that an immigration status document or employment authorization document was assigned to an employee.
MORE EMPLOYER AUDITS
Continuing its emphasis on employer compliance with immigration requirements, U. S Citizenship and Customs Enforcement ("ICE") launched an enforcement initiative in July 2009 to audit employer verification practices. 652 Notices of Inspection were issued July 2, 2009 to businesses across the US. This one day issuance exceeded the 503 notices issued during the 2008 government's fiscal year. The notices alert business owners of ICE inspection of employment records to determine compliance with I-9 employer verification requirements. ICE considers the inspections as one of the most powerful tools available to the federal government to enforce employment and immigration laws and illustrates increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce. ICE committed to establish a meaningful I-9 inspection program. The nationwide inspections initiative is described by ICE as the first step in a long term strategy to address and deter illegal employment.
Generally, employers selected for inspection are served with a Notice of Inspection three business days before the inspection. During the inspection ICE will inspect the employer's I-9 forms and any supporting documentation.
IN SUMMARY: BE PREPARED
As a result of the added focus of DHS on employer compliance with verification requirements, employers should review compliance with the I-9 verification requirements. Prudent employers should conduct an internal self audit of its I-9 procedures. If employers do not feel comfortable with the numerous requirements of the I-9 process, they should consider bringing in legal counsel for assistance. Among the issues to consider are the following:
? The I-9 procedures should be centralized with employees trained in the process to ensure better compliance
? Even if the employer participates in E-Verify, I-9 verification must be conducted
? The current I-9 form should be used
? The I-9 should be completed within three days of hire
? Complete the I-9 fully and examine original documents
? Only note the minimum required documents on the I-9 form
? Consider copying the documents presented. Copies are not required and experts differ on whether or not to keep copies. Be consistent in the approach taken.
? The I-9 should be stored separately from personnel files and kept for the required time periods
? Properly re-verify expiring work authorizations. Do not ask for reverification of permanent residence cards
? If changes need to be made on I-9 forms, do not back date the forms but annotate changes
If you require any assistance in responding to a Notice of Inspection or developing I-9 employment verification procedures, conducting internal audits of I-9 procedures, or concerning other employment or employment related immigration issues, please contact Philip J. Ripani, (317) 684-5280, firstname.lastname@example.org in the Labor and Employment Group at Bose McKinney & Evans LLP.