Compliance Watch: E-Verify, State Laws, Enforcement and I-9s

Ogletree Deakins will continue to provide updates and reminders on significant changes in immigration compliance on a regular basis. With all of the changes, stops, starts, delays and new rules, it is difficult to recall what changes are effective, which ones have been discontinued and which ones are soon to become effective. Below is a status report on significant compliance developments:

• The new Form I-9 and certain regulatory changes became effective on April 3. Employers are reminded to use the new form for new hires and for any reverification of existing employees. For a summary of the new requirements, see Ogletree Deakins’ April 3, 2009 E-Alert.
• Department of Homeland Security (DHS) reports that 124,000 employers have signed up for E-Verify. (Note that over 30,000 of the employers signed up for E-Verify are located in the state of Arizona which has a law mandating employer participation.) E-Verify is an Internet-based system operated by DHS in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The Obama administration announced it was requesting $112 million to fund E-Verify in the 2010 budget, an increase of $12 million over the prior year. Thus, despite complaints about the system’s reliability and the fact alternative employment authorization verification systems have been proposed, it appears that E-Verify is on track to become the system that will eventually be required of all U.S. employers.
• After three delays, the regulation requiring certain federal contractors to use E-Verify is scheduled to become effective on June 30. Implementation of the rule which was originally expected to occur on January 15, 2009. (See the February 2009 issue of the Immigration eAuthority for a review of the regulation.)
• South Carolina employers with 100 or more employees must perform the special verification for newly-hired employees starting July 1, 2009. These employers will be required either to use E-Verify or review a qualifying driver’s license. State contractors with 500 or more employees became subject to the same requirements on January 1, 2009. (See Ogletree Deakins’ June 4, 2008 E-Alert for more information on the law.)
• The Mississippi Employment Protection Act (S.B. 2988) phases in a requirement on employers to participate in E-Verify. On July 1, 2008, all Mississippi agencies and political subdivisions, all public contractors, and private employers with 250 or more employees became subject to the E-Verify requirement. On July 1, 2009, private employers with 100 or more employees will also become subject to the requirement. (See Ogletree Deakins April 4, 2008 E-Alert for a complete review of the law.)
• The Rhode Island Legislature is once again considering a law that would require private employers to use E-Verify. The bill has been passed by the lower house in each of the past two years, but both times it failed to pass in the state Senate. Rhode Island already has an Executive Order requiring the state to verify the immigration status of new government workers and state contractors to use E-Verify for any of their newly-hired employees.

Against the backdrop of regular enforcement activity and changing requirements, employers are reminded to revisit current procedures relating to immigration compliance and to consider completing a self-audit of their records and procedures.

Note: This article was published in the May 2009 issue of the Immigration eAuthority.