I-9 Compliance/E-Verify

On March 17th the director of the Department of Homeland Security and the director of USCIS announced three new initiatives to improve E-verify which include streamlined adjudication processes, and an informational telephone hotline and new training videos on E-Verify procedures and policies in English and Spanish.

The debate about the efficacy of E-verify rages on. The government continues to seek new ways to impose E-verify on employers while civil rights and immigrant rights groups complain about the errors and problems inherent in the E-verify system. These new initiatives are meant to address these concerns so that the Government can continue its efforts to expand the use of E-verify. A bill to make use of E-verify mandatory in Colorado was defeated in the Colorado Legislature.

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is reminding federal contractors and subcontractors that effective today, they may be required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. In July, Department of Homeland Security (DHS) Secretary Janet Napolitano strengthened employment eligibility verification by announcing the Administration’s support for the regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.

The E-Verify federal contractor rule extends use of the E-Verify system to cover federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued on or after today will include a clause committing government contractors to use E-Verify.

Companies awarded a contract with the E-Verify clause on or after today will be required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States.

More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since Oct. 1, 2008, more than 7.8 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.

More information on the program is available on the E-Verify Web site at www.dhs.gov/e-verify. E-Verify customer support is also available by calling toll free (888) 464-4218.

On July 1, 2009, U.S. Immigration and Customs Enforcement (ICE) issued Notices of Inspection to 652 businesses across the country. In Fiscal Year 2008, 503 similar notices were issued all year. The notices alert business owners that ICE will be inspecting their I-9 Forms to determine whether they are complying with employment eligibility verification laws and regulations. In a news release, ICE says it is part of their new strategic effort to “reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce.” ICE also claims to be “focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”

ICE News Release: http://www.ice.gov/pi/nr/0907/090701washington.htm

Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

June 26, 2009 – U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form. For more information, please contact your attorney at Stern & Curray LLC.

On May 13, 2008, the Colorado Legislature revised the Colorado Public Contractor Rule allowing contractors with public services contracts with the state, or political subdivisions within the state of Colorado, to choose between using E-Verify, or a newly created program through the Colorado Department of Labor, called the “Department Program.” Either of these programs can be used to verify that newly hired workers working on public service contracts are authorized to work.

The Department Program requires contractors to notify the Colorado Department of Labor that they will be participating in the program by completing a form that is available online for this purpose. Under the Department Program, the contractor must affirm within 20 days of hiring a new employee that the contractor has examined the legal work status of the new employee. The contractor must retain file copies of the documents required under Colorado law and not alter or falsify any of these documents. The contractor must then fill out an affirmation that must be notarized and submitted to the contracting state agency or political subdivision.

The affirmation and participation forms are available at http://www.coworkforce.com/LAB/pcs/. Once completed, the forms must be submitted to the contracting state agency or political subdivision.

On June 6, 2008, President Bush issued an executive order mandating all federal government contractors to use E-Verify to verify employment eligibility for all newly hired and future employees that will be working in federal contracts. Employers are also to use E-Verify to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract. Under the current E-Verify rules, you are not allowed to use E-Verify to screen current employees, but are required to re-verify employees who will be working on that federal contract. The federal government will be modifying the E-Verify system process to accommodate this new provision.

While states like Colorado have backed off of using E-Verify by creating alternative programs to verify work eligibility, the trend nationally is to make E-Verify mandatory. There are several bills in Congress including the Save Act which makes E-Verify mandatory for all employers across the United States. While this bill has not been enacted or signed into law at this time, it signifies the federal government’s push to get employees to use E-verify.

After December 26, 2007, employers who fail to use the new Form I-9 may be subject to all applicable penalties. All employers are required to complete a Form I-9 for each new employee hired in the United States.

USCIS announced, on November 7, 2007, that it was releasing the much-awaited revised I-9 form. Employers are required to fill out an I-9 form for all employees at the time of hire. Our firm is actively involved in working with employers and making sure their employee verification program is working correctly including the proper preparation and handling of I-9 forms. The biggest change in the new rule concerns the documents that are acceptable to prove employment eligibility. For more information, see www.uscis.gov/files/pressrelease/FormI9FS110707.pdf