On October 28th, President Obama signed the Department of Homeland Security appropriations bill for fiscal year 2010, extending E-Verify through September 30, 2012. The bill passed the house on October 15th and the Senate on the 20th.

Passage of this bill is consistent with the Administration’s stated intention to eventually make E-Verify mandatory for all employers (as we reported in April of this year).

E-Verify is an online system dependent upon the Form I-9 that is intended to allow employers to verify the employment authorization of newly hired employees.

Completing I-9s correctly when there are out-of-state employees or employer locations in different states is a challenge for many companies. Unfortunately, there is no easy answer to this problem. The solution that will work best for your company depends upon the company set up and practices. To restate the I-9 basics, the employer must review original documents and complete the I-9 correctly and in a timely manner – there is no way around these requirements even for out-of-state offices or employees. If new out-of-state hires are not brought to a main office to complete paperwork, you must have an out-of-state employer representative or agent reviewing original documents. The completion timeline still holds as well; employees must complete Section 1 of the I-9 by the close of business on their first day, and employers have until the third business day to review original documents and complete Section 2. Is your company compliant? If you have concerns, or questions about instituting policies and procedures that will work for your company, please contact us – we would be happy to help.

It appears that the E-Verify program is here to stay – at least until 2012. Last Thursday, the House of Representatives passed the $44.1 billion Department of Homeland Security budget for fiscal year 2010 (HR 2892). Funding for E-Verify was set to run out at the end of this month, but the 307-114 vote extends funding for E-Verify through September 2012. The budget is expected to pass the Senate this week and will then be passed on to the President for signature.

If you have questions about E-Verify, the I-9 Form or your company’s compliance responsibilities, contact us.

In case you haven’t seen it yet, the USCIS released supplemental E-Verify guidance specifically for Federal Contractors. This 22-page document can be found here.

Also, we have received inquiries from companies who don’t want to wait to enroll in E-Verify until they receive their new or amended contract. Please be advised that while any company is allowed to enroll in E-Verify at any time, companies cannot enroll in E-Verify as a Federal Contractor until they receive a new contract that contains the E-Verify clause or an existing contract is amended to include this clause. This is an important distinction to make, since the requirements and allowances for Federal Contractors and voluntarily-enrolled E-Verify users are different. Employers who voluntarily enroll in E-Verify before they receive a federal contract must amend their status within E-Verify after the contract with the E-Verify clause has been awarded. If you have questions, please contact us.

Recent reports indicate businesses have been receiving a new type of letter from the Social Security Administration. These letters state that the business has been selected randomly to take part in a Social Security Administration study and request information about specific employees. The letters include questions about the employees’ original employment applications, Social Security Numbers and documents. If your company receives one of these letters, please proceed carefully and consult with legal counsel before responding. In addition to labor law and immigration law considerations, privacy issues and potential fraud should also be considered.

Last Friday, a Missouri poultry processing company paid $450,000 in administrative fines following a 2007 worksite enforcement investigation. The fine will be used by Immigration and Customs Enforcement (ICE) to fund future enforcement activities. In addition to the fine, the settlement requires the company to train all Human Resources personnel, and set up company compliance policies to ensure that all Immigration laws are followed. In the ICE press release, Homeland Security Assistant Secretary for ICE, John Morton, notes that “Significant fines help hold businesses accountable to ensure a legal workforce”.

When it comes to I-9s, E-Verify and worksite compliance, we encourage companies to be proactive and preemptive. Careful review of existing I-9s, comprehensive training and the creation of strong compliance policies can help your company avoid hefty fines, negative publicity, and even criminal charges. Contact us for more information.

Starting today the government will begin including a clause in all qualifying federal contracts requiring the use of E-Verify. They may also begin to amend existing contracts, if the contracts meet the qualifying criteria. As mentioned in our September 3rd bLAWg post, a motion for emergency injunction was filed in the hopes that the start date would be postponed again, but this motion was denied. Please visit this article from today’s Wall Street Journal for additional coverage.

Employers who have sponsored employees for H-1B visas should be aware that the Department of Homeland Security / U.S. Citizenship and Immigration Services (USCIS) has been conducting random, unannounced, on-site inspections. Reports indicate that the USCIS Administrative Site Visit and Verification Program will visit 20,000 sites in an attempt to uncover fraud and abuses of the H-1B program.

It is our understanding that the investigations are being done by contracted workers (including former Immigration Customs and Enforcement officers and former USCIS adjudicators). These investigators may request to speak with company representatives and H-1B visa holders and review files in order to confirm that the employer is complying with the terms and conditions of the H-1B visa program.

Before there is a knock at the door, employers should make sure their files are well-maintained and accurate. Employers should also ensure that policies are in place instructing employees how to respond to the arrival of investigators.

In addition, government agencies do communicate with each other. Scrutiny by one government agency can encourage scrutiny by another. This is yet another reason to make sure your company’s I-9 forms are in order and that you have strong I-9 policies in place.

If an investigator knocks, or you need help developing the appropriate policies, GoffWilson can help.

What is happening on September 8, 2009?
On September 8, 2009 the government will begin including a clause in all qualifying federal contracts requiring the use of E-Verify. They may also begin to amend existing contracts, if the contracts meet the qualifying criteria. Once an employer has a contract containing the E-Verify clause, they will be required verify the employment authorization of all new employees, and all existing employees who are assigned to work on the relevant federal contract.

What is E-Verify?
E-Verify is an online system intended to allow employers to verify the employment authorization of newly hired employees. Employers enter the information from the employee’s I-9 form into the E-Verify program. The program electronically compares this information with information contained in databases maintained by the Department of Homeland Security (DHS) and Social Security Administration (SSA).

Will my company have to start using E-Verify on September 8, 2009?
It depends. Only employers who have a government contract with an E-Verify requirement clause are required to use E-Verify. If your contract is amended, or if you are awarded a contract on or after September 8, 2009, then you will need to enroll in, and use the system.

Does/will my federal contract qualify?
An employer has a qualifying federal contract if:

1. The contract is governed by the Federal Acquisition Regulation (FAR);
2. The period of performance is longer than 120 days;
3. The contract has a simplified acquisition threshold of over $100,000 or is a subcontract for services or for construction with a value over $3,000; and
4. The work is being performed in the U.S.

Please note that the new rule has several exemptions, including contracts that include only commercially available off-the-shelf items and related services.

It looks like my company will have to enroll. What do I do next?
Affected contractors will be required to enroll in E-Verify within 30 days of the contract award/modification date.

• New Hires: Within 90 days of enrollment, the contractor must begin to use E-Verify to initiate verification of employment eligibility of new hires who are working in the United States, whether or not assigned to the contract. Once the employer begins to verify new hires, such verification of new hires must be initiated within 3 business days after the date of hire. E-Verify does not currently allow employers to enter a future start date. Therefore, the employee must be run through the system on or after the first day of hire and before the end of the third day. This timeline is not flexible.
• Current Employees Assigned to the Contract: Once enrolled in E-Verify as a federal contractor, the Employer must initiate verification of existing employees assigned to the contract within 90 calendar days after the date of enrollment OR within 30 days of an employee’s assignment to the contract, whichever date is later.

Employers can choose which business sites to enroll in E-Verify, however, once a site has signed the Memorandum of Understanding all new hires at that site must be E-Verified.

Please note that employers who enroll in E-Verify are still required to complete the I-9 form for all newly hired employees. In other words, enrolling in E-Verify does not exempt employers from the responsibility to complete, retain, and make available for inspection I-9 forms, as currently required by law.

I am not a Federal Contractor or Subcontractor – should I sign up anyway?
Any employer can voluntarily enroll in E-Verify. Some companies have been required to sign up as a consequence of breaking immigration laws, or because state law requires it. However, for most employers, enrollment is voluntary. Please note that enrolling in E-verify does not protect a company from worksite enforcement actions. The E-Verify system is monitored closely by the federal government. As outlined in the E-Verify Memorandum of Understanding, employers are liable for inappropriate use of the system. In addition, by agreeing to use E-Verify, employers invite closer scrutiny of their workforce and hiring procedures. As a result, it is crucial for employers to have their I-9 forms and hiring procedures in order prior to enrolling in E-Verify. It is advisable to have an internal audit conducted by an outside source to verify that hiring procedures and form completion are compliant with the law.

The E-Verify requirement for federal contractors has been postponed four times in the past; will it be pushed back again?
Maybe. As of today, it appears that the September 8, 2009 start date will stick. However, an emergency motion for an injunction to prevent the rule from going into effect has been filed. If the motion is granted and the date changes (again!), we will be sure to let you know.

Additional Resources:

• For questions regarding E-Verify, internal Form I-9 audits or other immigration related matters, please contact GoffWilson.
• US Citizenship and Immigration Services (USCIS) maintains web page entitled Frequently Asked Questions: Federal Contractors and E-Verify.
• For more information, visit the E-Verify Memorandum of Understanding.
• Click here for the rule which includes the time periods in which employers have to verify their employees’ work authorization.

The recent decision by the U.S. District Court means that the federal regulation making enrollment and participation in E-Verify mandatory for certain federal contractors and subcontractors will go into effect on September 8, 2009. This date had been pushed back four times as a result of the change in administration and ongoing litigation. The federal government will include a clause with the E-Verify requirement in all federal contracts issued after September 8, 2009 and may modify existing qualified contracts.

For more information about E-Verify requirements please read our January 8, 2009 bLAWg post on the topic. Information can also be found on the U.S. Citizenship and Immigration Services (USCIS) website.

Employers should make sure they are fully compliant with Form I-9 rules and procedures before enrolling in E-Verify. To learn more about the auditing and training services offered by GoffWilson, or for more information on the new regulation, please visit GoffWilson.com or call (603) 228-1277.