President Barack Obama signed a $42.8 billion fiscal year 2010 homeland security appropriations bill that included a three-year extension of the federal government’s employment verification system – E-Verify. Approximately $137 million was budgeted to operate the system and further improve its accuracy and compliance rates. Although proposals to make E-Verify mandatory were not included in the final bill, there is clear support for the continuation and expansion of E-Verify as evidenced by the recent implementation of the Federal Acquisition Regulation (FAR) requiring certain federal contractors to use the system. 

Federal Contractors. As of September 8, 2009, employers with federal contracts or subcontracts that contain the FAR E-Verify clause are required to use E-Verify to determine the employment eligibility of: employees performing direct, substantial work under those federal contracts and new hires organization-wide, without regard to whether they are working on a federal contract. A federal contractor or subcontractor who has a contract with the FAR E-Verify clause also has the option to verify the company’s entire workforce.

USCIS has issued a few updates to its previous guidance documents.  USCIS quietly updated its Supplemental Guide for Federal Contractors as of October 21. The main changes from the original September 8 version can be found at pages 9 through 11. A key change noted therein is that the E-Verify system will allow the use of certain expired documents when “E-Verifying” existing employees. This includes passports, green cards (Form I-551) and List B documents from Form I-9 that were valid at the time of original completion but have since expired. This is generally a positive development for employers. However, this does not resolve all of the confusion and has the potential to create a case-by-case decision process for employers.

USCIS also updated its Federal Contractor FAQs. The updated FAQ has new sections dealing with E-Verify Designated Agents and the new Web Services Access Method whereby a company may develop software that interfaces with USCIS to perform employment eligibility verifications of newly hired employees by extracting data from existing databases. Most of the new information can be found at the end of the document.

Illinois Special Certification.  Aside from changes at the federal level, state laws impacting E-Verify usage continue to change as well, making it increasingly difficult for employers (particularly multi-state employers) to meet the various requirements. The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers within the state that use E-Verify. Starting January 1, 2010, employers must complete an attestation at the time of E-Verify enrollment (or by January 30, 2010, if already enrolled) confirming that responsible employees have completed the Department of Homeland Security (DHS) E-Verify tutorial.  Employers also must attest that they have posted applicable E-Verify and Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) notices at the workplace. Consistent with the DHS’ Memorandum of Understanding (MOU) entered into by E-Verify participants, employers are prohibited from terminating employees prior to receiving a final nonconfirmation of employment authorization from E-Verify and from using E-Verify to pre-screen employment applicants. However, the Illinois law allows injured employees to file a claim against the employer pursuant to the Illinois Human Rights Act. Visit the Illinois Department of Labor website for more information on the law.

Arizona Law. Arizona’s E-Verify law (the Legal Arizona Workers Act or LAWA) remains the broadest of state immigration laws by requiring all employers to use the DHS employment verification system or face the possible loss of their business license. The law has withstood a challenge to its constitutionality on grounds that it is preempted by federal immigration law (see the September 2008 issue of the Immigration eAuthority). The business and immigrant rights groups who filed the initial suit are seeking review of the Ninth Circuit’s decision in the case by the U.S. Supreme Court. The Supreme Court has requested that the Solicitor General submit a brief expressing the view of the federal government on the Arizona law. Should the Supreme Court make a decision on the case, it could have wide-ranging impact on the many state laws requiring the use of E-Verify by some or all employers. Ogletree Deakins will continue to monitor this case and report any updates.

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

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