Labor Immigration Law

We have written about this requirement in the past, but it is now a final rule.  Starting January 15, 2009, federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system to verify their employees’ eligibility to legally work in the United States.

Federal contracts awarded and solicitations issued after January 15, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over 3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.

It is interesting to note that the final rule is significantly narrower than the proposed rule circulated earlier this year.  The revised final rule would limit its application to contracts worth $100,000 or more, instead of $3,000, and require employers to check the eligibility only of workers on those contracts, instead of all their workers. The changes would apply to solicitations or awards made after January 15, and exempt workers who have already received security clearances, contracts for commercial, off-the-shelf items, and contracts lasting less than 120 days.

According to Department of Homeland Security numbers, more than 92,000 employers currently use E-Verify, a free Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their employees. During Fiscal Year 2008, more than 6.6 million employment verification queries were run through the system representing 1 out of every 8 hires made in the United States. Approximately 96.1 percent of all cases queried through E-Verify are instantly found to be employment authorized, and individuals who are not immediately cleared are given the opportunity to correct their government records in order to confirm their work eligibility.

We are attaching a Frequently Asked Questions document, released by USCIS yesterday, to address most of the concerns and questions which may be raised by this new rule.  We at the Capitol Immigration Law Group are an E-Verify registered agent and we can help you understand the requirements of the system and we can help you in your compliance efforts.  Please contact us for more information.

Problem:  students on Curricular Practical Training (CPT) are always sent to secondary verification by E-Verify.

From our own practice and from statistics released by the government, it is clear that more and more employers are signing up for E-Verify, some in response to federal or state regulations, some on their own effort to maintain a compliant workforce.  However, as more and more foreign nationals are being screened through the system, we are starting to notice some of the less obvious quirks of the system.

One of those quirks is the fact that F-1 students who have are working under CPT, which is employment that is part of a student’s specified degree curriculum. The Designated School Official (DSO) authorizes CPT for students before they can begin wok by annotating their I-20 in accordance with the 8 CFR 214.2(f)(10)(i). Unlike Optional Practical Training (OPT), no employment authorization from USCIS is needed.

The problem has two parts.  First is the requirement that all E-Verify employers conduct checks on all of ther employees, including students on CPT. The second part is the fact that E-Verify is not connected to SEVIS, the system which maintains the foreign students’ records, including CPT authorizations.  As a result,  E-Verify always sends a CPT student to secondary verification.

The USCIS has responded that even though students on CPT are always sent to secondary verification, such secondary verification should occur within 24 hours, assuming the student’s record can be located in the SEVIS system.    Despite USCIS claims, we urge students on CPT and employers who employ such students to be aware of this quirk in E-Verify and allow extra time for E-Verify screening.

The E-Verify program, as we know it and have used to love it or hate it now, is set to expire on November 1st.  E-Verify and its requirements to verify the employment eligibility for all new hires is the cornerstone of many states’ immigration enforcement laws.  For example, South Carolina and Arizona require all or a large portion of the companies who employ workers to use E-Verify.

With the Senate in recess from August 1 until September 7, and target adjournment date of September 26, there are not many days left for Congress to consider the many issues that surround E-Verify.  Many senators wish to condition or structure E-Verify’s reauthorization with some other immigration measures.  Some of the proposed bills are likely to spur a fair amount of opposition and their passage, as proposed, is not guaranteed.

Until then, E-Verify is still operational, but the limited calendar and the desire of the U.S. congressmen to push alternative immigration measures alongside E-Verify may mean that its renewal will be down to the wire.

We at the Capitol Immigration Law Group will continue monitoring the situation on behalf of our clients and report as we get updates.  To receive timely updates please visit this site regularly, subscribe to its RSS feed, or subscribe to our email newsletter.

USCIS has released a new version of the Form I-9, Employment Eligibility Verification.  Employers should start using the revised form (it has Rev. 06/16/08 in the bottom right corner) effective immediately because USCIS will no longer accept older versions.

Because employers are required to complete a Form I-9 for each new hire, the change in the form should be noted.  The substantive changes in the form are minor.

The following documents are no longer acceptable evidence both as identity and as employment eligibility:

• The Certificate of United States Citizenship (Form N-560 or N-561);
• The Certificate of Naturalization (Form N-550 or N-570);
• The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card’”);
• The Unexpired Reentry Permit (Form I-327); and
• The Unexpired Refugee Travel Document (Form 1-571)

The revised List A of the List of Acceptable Documents now includes the most recent version of Form I-766, Employment Authorization Document.

Finally, the instructions regarding Section 1 of Form I-9 now indicate that the new hire is not required to provide a social security number unless the employer participates in the E-Verify program.

The debate surrounding E-Verify is in full force.  In the meantime, the federal government and many states are busy implementing regulations requiring employers to become E-Verify compliant and start using the E-Verify system for all of their new hires.

The latest regulation is an Executive Order 12989 as Amended, dated as of  June 6, 2008, which requires all federal agencies and departments to require from all federal contractors who are also employers to become E-Verify participants and ensure that all new hires are subject to E-Verify checks.

Section 5(a) reads: “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.”

Based on this Executive Order and other federal and state regulations, it is clear that E-Verify is here to stay.  While the debate on its  effectiveness and burdens on employers will continue, there are a number of “carrots” which make E-Verify participation extremely hard to reject.  In addition to the ability to obtain federal contracts, many employers must become E-Verify employers in order to be able to hire or extend F-1 visa OPT documents for highly qualified foreign graduates.

The good news is that we at the Capitol Immigration Law Group can help you with your E-Verify compliance.  We are E-Verify Designated Agent and we allow you to outsource your E-Verify compliance work to us.   As a law firm, we not only provide E-Verify processing but we can also advise your company on developments in the law which can affect your company and employees.  Please contact us for more information on how your company can become E-Verify compliant in few easy steps.

We wrote earlier today about the improvements to the E-Verify program.  In the past weeks we have been approached by some of our corporate clients and asked whether we would provide E-Verify services.  In addition to advising employers on immigration, E-Verify, and employment authorization compliance, we are now registered with USCIS as E-Verify Third Party Agent.

This E-Verify Third Party Agent status allows our employer clients to outsource the E-Verify processing to us while they remain focused on their core business processes.  If you are an employer who wishes to register under the E-Verify program and take advantage of the electronic employment authorization verification please contact us.  We provide full service E-Verify solutions to our employer clients and we would be happy to discuss your needs.

USCIS just announced a couple of significant enhancements to the E-Verify program which should increase its accuracy and appeal to employers.  One of the main concerns of E-Verify is that a fair number of legitimately authorized workers receive a non-confirmation which has consequences, ranging from embarrassment to potentially losing their employment.

About E-Verify. E-Verify is a program which provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.  The program is operated by USCIS in cooperation with the Social Security Administration (SSA) and it has evolved over the past 10 years to allow employers a quick (and ideally) accurate way to determine the employment eligibility of a new hire.  Currently, there are 64,000 employers who participate in the program with approximately 1,000 new enrollments weekly.  Our firm regularly provides advice to employers on E-Verify participation and compliance and we have noticed increased interest from employers.

The Changes.  Starting immediately, the E-Verify system will include naturalization data, which will help instantly the citizenship status of naturalized U.S. citizens hired and subject to verification by E-Verify employers.  According to USCIS, naturalized citizens who have not yet updated their naturalization records with the SSA are the largest category of properly authorized employees who face an initial E-Verify mismatch.

The second immediate change is that E-Verify will also include real-time arrival data from the border inspection and arrival system.  The goal of this integration is to reduce the number of mismatches related to immigration status for newly arriving workers who enter the U.S. legally through a point of entry.

Among the future plans for E-Verify – have USCIS sent back information to SSA to avoid future mismatches from happening and integrate Department of State passport records.