Revised Inter-agency Agreement Clarifies Worksite Enforcement Directives

Immigration Daily
ilw.com

by John Fay
Yesterday, the US Department of Labor (DOL) and the Department of Homeland Security (DHS) signed a revised Memorandum of Understanding (MOU) which clarifies the ways in which the two agencies will coordinate their respective civil worksite enforcement initiatives. Historically, both agencies have worked together pursuant to a 1998 MOU which promoted the shared interests of having a legal workforce that is protected under the full range of fair employment standards. Despite this long-standing agreement, it has never been entirely clear to what extent the two agencies would conduct coordinated or joint enforcement activities (the dreaded one-two punch). Yesterday’s MOU revision clarifies that while both agencies are encouraged to share pertinent worksite information (which would be relevant to the other), employers should generally not expect both DOL and ICE worksite investigations at the same time. Nevertheless, employers should take note that there are limited circumstances (see below) when dual investigations are not only permitted, but also very likely. Plus, when it comes to worksite enforcement, policy and practice have been known to diverge on occasion.

Full Story: http://www.ilw.com/articles/2011,0421-fay.shtm

E-Verify: Truth in Numbers

Department of Homeland Security
Blog
Lauren Kielsmeier is the Chief of Staff for U.S. Citizenship and Immigration Services
Wednesday, March 17, 2010

Recently, some media reports have used statistics that appear to call into question the effectiveness and accuracy of E-Verify. I’d like to set record straight. A report by the independent research firm Westat, using a sample from a three month period in 2008, concluded that E-Verify was accurate 96 percent of the time. Since then, the Obama administration has taken significant steps to further improve E-Verify.Read the report for yourself here.What else did this report tell us about E-Verify?
93.8 percent of workers screened by E-Verify were authorized for employment—and the system instantly and accurately confirmed more than 99 percent of these eligible workers.
The remaining 6.2 percent were not eligible for employment. Out of this estimated 6.2 percent, approximately half were told they are work authorized when they were not—just 3.3 percent of the overall population screened by E-Verify.
To be clear, this means that only an estimated 3.3 percent of all workers screened by E-Verify were incorrectly told they were work authorized.The system’s accuracy and efficiency continues to improve, reflecting the changes and improvements to E-Verify that USCIS has made over the past year—and continues to make.

Full Blog Post: http://www.dhs.gov/journal/theblog

DHS Unveils Initiatives to Enhance E-Verify

Department of Homeland Security
Press Release
Release Date: March 17, 2010

For Immediate ReleaseOffice of the Press SecretaryContact: 202-282-8010
Agreement with Department of Justice and Outreach Initiatives Will Strengthen E-Verify for Employers and Employees
Department of Homeland Security (DHS) Secretary Janet Napolitano today joined U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas to announce a trio of initiatives to strengthen the efficiency and accuracy of the E-Verify system.
These initiatives include a new agreement with the Department of Justice that will streamline the adjudication process in cases of E-Verify misuse and discrimination; an informational telephone hotline for employees to provide a more timely, effective and seamless customer experience for workers seeking E-Verify information; and new training videos focusing on E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish.
“E-Verify is a smart, simple and effective tool that helps employers across the country maintain a legal workforce,” said Secretary Napolitano. “The initiatives announced today will provide essential information to workers about their rights and ensure that E-Verify is used fairly while bolstering the Department's efforts to protect critical employment opportunities.”
“USCIS continues to partner with our federal colleagues, as well as industry and employee representatives, to build a verification program that is accurate, efficient and fair for employers and workers alike,” said Director Mayorkas. “We look forward to working with our colleagues in the Department of Justice to ensure the continued integrity and improvement of E-Verify.”
“This agreement will better enable us to protect individuals who are authorized to work in this country from national origin or citizenship-status discrimination,” said Assistant Attorney General for Civil Rights Division Thomas Perez. “We will not hesitate to take action against employers who violate our nation’s civil rights laws.‪”
The Memorandum of Agreement signed between USCIS and the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes protocol between USCIS and the Department of Justice for referring matters that fall within the agencies’ respective jurisdictions.
The two new, educational training videos, explaining E-Verify procedures and policies, employee rights and employer responsibilities in English and Spanish were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at www.dhs.gov/e-verify and www.youtube.com/ushomelandsecurity.
Additionally, the USCIS E-Verify help line will now offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781 and will be active beginning April 5, 2010.
E-Verify is a free, easy-to-use Web-based system—operated in partnership by USCIS and the Social Security Administration—that allows participating employers to electronically verify the employment eligibility of newly-hired employees. More than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since Oct. 1, 2009, E-Verify has processed more than six million queries.
For more information, visit www.dhs.gov/e-verify.##

U.S. Chamber Lawsuit Challenges Massive Extension of E-Verify Program to Federal Contractors

U.S. Chamber of Commerce
Contact: Sheldon Gilbert(202) 463-5685 / 888-249-NEWS
December 23, 2008
Executive Order is being used to circumvent Congress, Chamber says

WASHINGTON, DC—The U.S. Chamber of Commerce today challenged the legality of requiring federal contractors and sub-contractors to use the Department of Homeland Security’s (DHS) E-Verify system. Joining the U.S. Chamber as co-plaintiffs in the lawsuit are the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel, and the HR Policy Association. “This massive expansion of E-Verify is not only bad policy, it’s unlawful,” said Robin Conrad, executive vice president of the National Chamber Litigation Center (NCLC), the Chamber’s public policy law firm. “The Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce.” The case, filed in the U.S. District Court for the District of Maryland, is Chamber of Commerce of the United States of America, et al. v. Chertoff, et al. E-Verify allows employers to voluntarily verify the work authorization of new employees. The Chamber’s lawsuit challenges the government’s use of an Executive Order coupled with federal procurement law to make E-Verify mandatory for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. The Chamber also challenged expanding E-Verify to require the re-authorization of existing workers. “The DHS intends to expand E-Verify on an unprecedented scale in a very short timeframe, and to impose liability on government contractors who are unable to comply,” said Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the U.S. Chamber. “Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America’s businesses.”NCLC is the public policy law firm of the U.S. Chamber of Commerce that advocates fair treatment of business in the courts and before regulatory agencies.The U.S. Chamber is the world's largest business federation representing more than 3 million businesses and organizations of every size, sector, and region.# # #
http://www.uschamber.com/press/releases/2008/december/081223_lawsuit.htm

Federal Contractors Frequently Asked Questions (FAQs) on E-Verify Requirements

US Citizenship and Immigration Services
Federal Contractors Frequently Asked Questions (FAQs)

1. As a current or prospective Federal contractor, am I required by the Executive Order or the proposed rule to enroll in E-Verify now?
Not at this time. At this time, the E-Verify program remains a voluntary program for employers, including federal contractors. The Executive Order instructs Federal agencies to require contractor participation in E-Verify as a term of future contracts, and the proposed rule provides detailed guidance on how that requirement is to be implemented. However, the proposed rule is not a final rule; it is a proposal that is open for public comment at this time. There may be substantive changes to the rule before it becomes final. Moreover, the final rule will not be effective until 30 days after publication. Under the proposed rule, you would only be required to enroll in E-Verify if and when you enter into a Federal contract or subcontract that requires participation in E-Verify as a term of the contract. Although Federal Contractors are not yet required to participate in E-Verify, you are encouraged to enroll in E-Verify now to verify the employment eligibility of your new hires.

2. What are the responsibilities of Federal Contractors who choose to participate in E-Verify?
The responsibilities of all employers that use E-Verify currently can be found in the Memorandum of Understanding (MOU) that sets forth the legal obligations and responsibilities of employers. The "E-Verify MOU" is available for review at the bottom of this page. It is important for all employers to recognize that staff that uses E-Verify must be thoroughly trained in appropriate E-Verify procedures and policies. The failure to use the program appropriately may lead to liability for the company, including back wages for employees who have been subject to adverse action, and expulsion from the program.
Once the proposed amendments to the Federal Acquisition Regulation have been finalized, we anticipate that the responsibilities of Federal Contractors participating in E-Verify will change in accordance with the final FAR rule. A proposed MOU specific to the requirements of the proposed FAR rule can be viewed on the regulatory docket. Upon issuance of a final rule, the E-Verify website will contain updated information specifically designed to assist federal contractors covered by the final rule, and their employees. This material will include the revised MOU that covers affected government contractors, and frequently asked questions and answers.
For access to the docket to read background documents or comments received, go to the Regulations.gov listed under"Related Links" on the right side of this page.

3. Which employees may I verify through the E-Verify system?
As a voluntary participant in the E-Verify Program, all employers are required to verify all new hires at designated sites, following completion of the Employment Eligibility Verification Form I-9 (Form I-9). The proposed FAR rule covers verification of existing employees when they are assigned to work on a covered Federal contract. However, until such time as the FAR rule is deemed final and effective, employers are prohibited from verifying or re-verifying current employees through E-Verify.

4. May I run an existing employee through E-Verify at this time?
No. All employers are prohibited from running existing employees through E-Verify at this time. The proposed FAR rule is subject to comment from the public, consideration of these comments by the government, and subsequent issuance of a final rule in the Federal Register with a stated effective date. Until the FAR rule is published in the Federal Register as a final rule, existing program rules apply to all employers using the program. Under the proposed FAR rule, only those employers that are awarded a contract with the Federal Government that includes the contract term required by the final FAR rule may run existing employees through E-Verify, and then, only if such employees work on the covered contract.

5. Why should I consider participating in E-Verify?
E-Verify is currently the only means available for employers to electronically verify the employment eligibility of hew hires. E-Verify helps protect jobs for authorized U.S. workers and helps U.S. employers maintain a legal workforce.

6. How does E-Verify work?
E-Verify is an Internet-based system operated by the U.S. Citizenship and Immigration Services that allows employers to electronically verify the employment eligibility of all newly hired employees, regardless of citizenship. Based on the information provided by the employee on their Form I-9, E-Verify electronically checks this information against records contained in Department of Homeland Security (DHS) and Social Security Administration (SSA) databases.

7. How do I begin using E-Verify?
Before you can start using E-Verify, you need to enroll your company in the program. When you enroll your company, you will be asked to provide basic contact information for your company and agree to follow the rules of the program. At the end of the enrollment process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between you the Federal Contractor, the SSA, and DHS.Select the "E-Verify Registration" link listed under"Related Links" on the right side of this page to begin the enrollment process for your company.
Once you have completed the enrollment process, USCIS will review your information and activate your account. After the account is activated, you will receive an email with your logon instructions, user identification, and password.

8. May I use E-Verify prior to hiring a job applicant?
No. All users, including federal contractors, are prohibited from using E-Verify prior to hiring an applicant. By signing the MOU to participate in E-Verify, all employers agree not to use E-Verify for pre-employment screening of job applicants, support for any unlawful employment practice, or any other use not authorized by the MOU. Should the employer use E-Verify procedures for any purpose other than as authorized by the MOU, the employer may be subject to appropriate legal action and the immediate termination of its access to SSA and DHS information.

9. What information is required to conduct an initial verification using E-Verify?
All new hires are required to complete the Form I-9 before an E-Verify query is conducted. Federal Contractors, who are enrolled participants, must submit a query that includes information from sections 1 and 2 of the Form I-9, including:
a) Employee's name and date of birthb) Social Security Number (SSN)c) Attested citizenship status (US Citizen, Lawful Permanent Resident, or Alien Authorized to Work)d) Alien number or I-94 number, if applicablee) Type of document presented for the Form I-9 to establish identity and/or work eligibility statusf) In some cases the document number and expiration date
Note that recently admitted asylees and refugees may not have a Social Security number at the time of hire; for those cases, the employer should run the person through E-Verify after the employee has received their number from the Social Security Administration.

10. What is the required timeframe for conducting an employment eligibility check through E-Verify on a newly hired employee?
The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. For newly hired employees, the employer must initiate the query no later than three business days after the newly hired employee starts work for pay. [To see all of the questions and answers, go to: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=00ccb85299d6a110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD ]