by Jason Morris

Most of us knew this was coming!  This allows for employers to continue using automated I-9 Services and E-Verify as it currently stands.

Democratic leaders and Republicans agree that there is not enough time left in this year’s congressional session for the wider verification debate.

In a year when political gridlock has halted most immigration legislation, the House overwhelmingly approved a bill Thursday, July 31, that would extend for five years a controversial government-run electronic employee verification system.

Although the measure passed 407-2 under special House rules that required at least a two-thirds majority, the final outcome doesn’t signal widespread agreement on the issue.

Many Democrats and some Republicans want to overhaul or junk E-Verify. Most Republicans and some conservative Democrats praise it for helping reduce the “jobs magnet” that fosters illegal immigration—and want to make it permanent and mandatory for all employers.

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by Jason Morris

A few weeks ago I spent time in Washington DC lobbying on behalf of our industry. Included in this NAPBS “Day on the Hill” was a very productive meeting with the Department of Homeland Security (DHS). DHS along with many of our members came up with some great ideas on how to expedite Tentative Non Confirmations (TNC’s) and other issues facing employers using E-Verify. I came across the following article this morning while reading BLR’s HR section, a great resource for HR Professionals and Employment Lawyers. E-Verify and other automated I9 Services are being used by approximately 5% of U.S. employers, this number will go up significantly in the coming years.

March 24, 2008

Gov’t Adjusts No-Match Rule, Aiming to Address Court Ruling

The U.S. Department of Homeland Security (DHS) has released a Supplemental Proposed Rulemaking for the No-Match Rule previously issued on August 15, 2007, aiming to address three issues cited in a decision of the U.S. District Court for the Northern District of California blocking the original rule. The August 2007 rule outlined steps an employer should take if it receives a letter indicating that the information submitted for an employee fails to match the government’s records.

Specifically, the court questioned whether DHS had: (1) supplied a reasoned analysis to justify what the court viewed as a change in the department’s position–that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be authorized to work in the United States; (2) exceeded its authority by interpreting the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA); and (3) violated the Regulatory Flexibility Act by not conducting a regulatory flexibility analysis.

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by Jason Morris

As many of our readers know I am very involved with our industry international association, NAPBS. Every year for the past four years we have had a “Washington Fly In” to promote our initiatives and make our congressmen aware of our industry and laws that may be affecting it. This year I had the privilege of doing it again. Last week I spent three days in Washington meeting with various Congressional and Senate Offices in addition to a very productive meeting with the Department of Homeland Security.

Not much is happening during this session of congress due to the upcoming elections but it gave us an opportunity to focus on a few issues that are still pending; Immigration Reform, Privacy Bills, FCRA and the Fair use of Criminal Records.

The current E-Verify program run by the Department of Homeland Security and the Social Security Administration is due to sunset (expire) this calendar year. All signs point to it being renewed. Currently there is a bill supported by SHRM introduced by Congressman Sam Johnson (3rd Dist. - TX) called H.R. 5515 the New Employee Verification Act. The current program, E-Verify is not perfect but it is a good system and is getting better every day. Based on the feedback I received the Johnson Bill is unlikely to go anywhere and will likely die in committee. NAPBS fully supports the re-issue of the E-Verify program and is working with the Department of Homeland Security on ways to improve the program through designated agents.

Other noteworthy bills include:

H.R. 3316 - Identity Theft Protection Act of 2007 (Representative Carolyn Malony)

I had the pleasure of meeting with a few actual members of congress and several senior staffers and chiefs of staff. It was a very productive trip, many of the individuals we met with remembered us from past years. Its important to keep up our lobbying efforts. Many times bills are introduced with unintended consequences for our industry. NAPBS has done an exceptional job at keeping our initiatives on the forefront of their legislation.

by Nick Fishman

On Wednesday November 7th, US Citizen and Immigration Services released a revised Employment Eligibility I-9 form to be used by employers. All U.S. employers are mandated by Federal law to have all employees complete an I-9 form within the first three days of work. The use of the newly released form is not yet mandated, but soon will be. Feel free to download a copy of the new form below:

New I-9 Form

by Nick Fishman

This is pretty drastic. Evidently Illinois governor Rob Blagojevich distrusts the Social Security Administration’s and Department of Homeland Security’s databases so much that he and other Illinois law-makers have banned the use of the basic pilot program. The basic pilot program allows employers to query these databases to determine if their employees are legal U.S. workers. I understand their concern about the fallibility of these databases. There are definitely some false-positives that come across (tentative non-confirmations that occur due to poor record keeping or data entry by these governmental agencies), but this seems a bit drastic. See the article below.

New State Law Bans Use of Residency Tool

There is a vague provision that allows use of the system after “training” of an organization has occurred. I have been told by those in the know that this legislation is most likely in response to a power play from Illinois’ labor unions and that this law will ultimately be deemed unconstitutional.

by Nick Fishman

Last month Seyfarth Shaw updated us with The Department of Homeland Security’s Immigration and Customs Enforcement agency (ICE) efforts to crack down on employers who received mismatch letters from the Social Security Administration and didn’t act upon them. Enforcement was to begin on September 14th, but a federal judge in California issued a temporary ruling which prohibits the Social Security Administration from sending the letters and DHS from acting on them.

Again, Seyfarth has provided us with a full breakdown of these events. See link below. Do you think the government will ever figure this thing out?

Lawsuit Halts DHS Crackdown on Unauthorized Workers

by Nick Fishman

Check out this update from Seyfarth Shaw concerning a recent rule established by ICE concerning tougher enforcement of Social Security Mismatch Numbers.

Social Security Mismatch Letters: New ICE Rule Increases Risk to Employers

Employers that don’t properly follow up on and resolve errors stemming from workers with social security numbers that come back as mismatches now face greater risk. If the government actually follows through on this employers should take note.

There are some affective tools out there for proactively determining an employee’s right to work status. One such tool is the Electronic I-9 Process which has developed by experts to allow employers to fill out a “smart” electronic I-9 form and submit it to the Social Security Administration and Department of Homeland Security for instant status. They then can electronically archive the report and the results. It’s a great solution to handle the I-9 process, but until the federal government enacts and enforces legislation my experience is that employers aren’t going to bite.

by Rob Thomson

Second on our list of coming trends presented to the 2007 SHRM annual conference in Las Vegas was “verification of right-to-work.” In a nutshell, the push is to force employers to utilize DHS‘ Basic Pilot Program for instant, electronic I-9 verifications. It’s great in theory but employers have been slow to embrace the instant electronic confirmation of work eligibility.

Colorado has already mandated this tool for employers, and Arizona is set to enforce stiff penalties beginning in 2008, to include potential revocation of business licenses, for employers that fail to comply, or knowingly employ ineligible workers.

A recent article, “Employers brace for immigration rules“, discusses a new tack the federal government is considering. Whether or not any employer nationwide utilizes the basic pilot program, the Social Security Administration has historically flagged SSNs that didn’t jibe with identity info on record. “No match” letters have always been sent to workers and employers, but left it up to the employee to resolve the issue, with no culpability on the employer’s part.

The proposed new rule will put the onus on the employer to make sure the issue is resolved within 60 days, or they must fire the employee outright. Failure to comply means the employer may be deemed as having knowingly hired illegal workers, and face stiff penalties. This will be an obvious incentive for employers to utilize the electronic instant verification system (basic pilot program), but doesn’t appear to specifically mandate it (we can probably assume mandated use of the system won’t be far behind).

by Nick Fishman

Another day, another state passing a law that requires employers to verifiy their employee’s work eligibility status. (Okay, this actually took place on June 29th, but I’ve been busy blogging about other topics) This time, the State of Georgia has enacted Senate Bill 529 that mandates that all businesses the contract with the state and have 500 or more employees must confirm their employees legal right to work status with the Social Security Administration or Department of Homeland Security (DHS)for residents of other countries who are legally permitted to work in this country.

In addition to enforcing federal immigration laws, the state feels that this measure will discourage those doing business with the state from human traffiking and taking state deductions for undocumented workers.

What I find interesting about this measure is that they only require this of those that employ over 500 employees. Why? Do they trust that small employers wouldn’t hire illegals and are they just starting somewhere? Also, this should be an interesting test case for the state. What if these contractors now cannot find enough legal workers to complete the jobs the state has contracted for? Do they rescind this measure? Do they look for out-of-state contractors? Can they require out-of-state contractors to do the same? Will they eventually mandate this for all employers in the state of Georgia?

Who knows? We’ll keep following this story and update you from time to time.

by Nick Fishman

Some trends take longer than others. Take for instance beanie babies, bell bottom pants, swatch watches, or cabbage patch kids. These things took off like wild fire. For better or worse, it seemed like everyone couldn’t wait to participate. Okay so maybe the trend for states to enforce employment eligibility laws isn’t setting world records for speed, but Arizona is now set to be the second state to pass a law that puts teeth into the enforcement of only hiring legal U.S. citizens and it is believed that Georgia is close behind. Arizona house bill #2779 threatens to suspend the business license of first time offenders and even includes a “death penalty”, permanent revocation of a business license for failing to verify work status on all employees. Of course, so far the state’s efforts are only being bolstered with a $100,000 budget, but if these efforts actually do take shape, employers in the state of Arizona better take note, and fast!

I was recently speaking with an employment attorney about states adopting such laws for the enforcement of a federal statute and she questioned whether the state could actually adopt legislation that mandates the enforcement. It’s a question I still haven’t been able to answer but one that we should most definitely follow up on.

In the meantime, should this trend continue, it puts further onus on the employer to ensure that their employees are working legally in this country. It dictates that they must spend more time making sure that I-9 documentation is filled out correctly, that identification be scrutinized and that the employer confirm the employees eligibility status with the Social Security Administration. With the threat of the aforementioned sanctions, failure to do this could really hurt . . . now.