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Archive for the ‘Worksite Enforcement’ Category
Thursday, April 1st, 2010
The Utah and Virginia legislatures recently passed laws requiring the verification of new hires’ employment authorization by employers in those states. The Utah legislature passed the Private Employer Verification Act, although the Act currently awaits signature by the Governor before officially becoming law. This law requires private employers with 15 or more employees to verify the employment authorization of all new hires on and after July 1, 2010 through a “status verification system.” The law defines “status verification system” broadly to include E-Verify, the Social Security Number Verification System, or another similar program run by the federal government. Notably, the law exempts H-2A and H-2B workers from the verification requirement. Public employers also are exempt.
The Utah law also includes a “safe harbor” rule. If an employer unlawfully hires an alien without work authorization, the employer cannot be held civilly liable if the employer was registered with and used the status verification system, and the information received from the system indicated the employee had authorization to work in the U.S. Likewise, an employer cannot be held civilly liable if the employer refuses to hire the alien because the information from the status verification system indicated the alien was not authorized for employment by the federal government. As of March 19, 2010, the law was awaiting the governor’s signature.
Virginia also passed a law requiring the use of E-Verify. Unlike the Utah law, however, Virginia’s law only requires public employers to use E-Verify for new hires on or after December 1, 2012. Private employers in Virginia have no obligation to use E-Verify.
E-Verify is an internet-based Employment Eligibility Verification System run by United States Citizenship and Immigration Services (USCIS) that allows employers to electronically verify the employment eligibility of certain employees. To use E-Verify, an employer enters employee information from the Form I-9 into the web-based system. E-Verify then runs that information against records in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to confirm whether the employee is authorized to work in the United States. For more information, contact your Klasko Law attorney.
Tags: E-Verify, Worksite Enforcement
Posted in News & Politics, Worksite Enforcement | Click Here To Comment »
Wednesday, March 31st, 2010
Last week, USCIS issued a “Frequently Asked Questions” document to help federal contractors with the E-Verify process. The FAQ answered questions that arose from the E-Verify webinar sponsored by Department of Homeland Security in September 2009. The FAQ clarified setting up E-Verify accounts, employer’s responsibilities under the system, employee’s rights under the system, and the record keeping requirements for E-Verify, amongst a host of other specific questions.
On March 25, 2010, however, USCIS retracted the FAQ for federal contractors that were distributed on March 17, 2010 to webinar participants. According to USCIS, the FAQs were sent in error and that updated FAQs will be posted to the E-Verify website after DHS clarifies several points.
Under federal law that became effective June 30, 2009, federal contractors are required to participate in E-Verify. Failure to comply with the Federal Contractor Rule can result in loss of federal contracts and debarment from future federal contracts. To learn more about E-Verify, please visit our worksite enforcement website at: http://www.worksite-compliance.com/e-verify.php, or contact your Klasko Law attorney.
Tags: E-Verify, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Friday, March 26th, 2010
In a move sure to capture the attention of employers using the E-Verify system, the United States Citizenship and Immigration Services (USCIS) has entered into a Memorandum of Agreement (“MOA”) to share information with the Civil Rights Division, Office of Special Counsel for immigration Related Unfair Employment Practices (“OSC”), which is a part of the of U.S. Department of Justice. Under the MOA, which went into effect on March 17, 2010, USCIS will share with OSC data obtained from queries run through E-Verify, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act (“INA”). USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.
OSC is responsible for enforcing the anti-discrimination provisions of the INA. The types of discrimination and violations covered in these provisions include: (1) citizenship status discrimination, (2) national origin discrimination, (3) unfair documentary practices during the employment eligibility verification process (document abuse) and (4) retaliation. Under the MOA, USCIS will refer to OSC allegations involving potential discrimination resulting from employer misuse or abuse of E-Verify. OSC will analyze the information to identify potential patterns or practices of discrimination through the misuse of E-Verify, or by investigating individual claims of discrimination.
The announcement of the information sharing agreement coincides with the announcement by USCIS of two additional initiatives intended to “enhance” E-Verify. The first is the creation of an Employee Hotline, available starting on April 5, 2010, intended to address employee inquiries and complaints. The hotline will provide general information to employees about E-Verify and completing Form I-9, and will also provide an option for employees to contest an E-Verify case or file a complaint regarding possible discrimination or employer misuse of E-Verify. The second initiative was the creation of two videos, available now on dhs.gov and Youtube. The first is directed towards employers, to help them understand their responsibilities under E-Verify, while the other directed towards employees to inform them of their rights when working for employers enrolled in E-Verify.
The USCIS has indicated that the purpose behind these two initiatives, and the information sharing agreement with OSC, is to strengthen the efficiency and accuracy of the E-Verify system. The message to employers, however, is that participation in E-Verify now comes with the potential for additional scrutiny. In order to avoid a potential claim of system misuse, or discrimination, employers should take steps to ensure that employees responsible for submitting E-Verify queries on the company’s behalf understand the implications of using the system, and its requirements. Further, employers must ensure that employees responsible for verifying the eligibility of other employees understand the anti-discrimination provisions of the INA, both by providing training and by making available to those employees internal and/or external resources capable of providing assistance and advice when questions arise.
Tags: E-Verify, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates, Worksite Enforcement | 1 Comment »
Tuesday, March 9th, 2010
Last week, Immigration & Customs Enforcement (ICE) issued a press release stating that it will send another 180 Notices of Inspection (NOIs) to businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The notices alert the employers that ICE will be coming to their workplace to inspect I-9 records. This marks another round of inspections by ICE, which in 2009 issued 1000 NOIs to employers around the country. Acting special agent in charge of the ICE Office of Investigations in New Orleans, Raymond R. Parmer, Jr., stated that “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This effort is a first step in ICE’s long-term strategy to address and deter illegal employment.”
Employers around the country should expect ICE to issue more NOIs throughout 2010. As ICE explained, in 2009 it “implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”
Klasko reminds employers that it is critical to keep accurate I-9 records. Form I-9 requires employers to determine the employment authorization of hires by reviewing and recording the employee’s identity documents and determining whether the documents reasonably appear to be genuine and related to the individual. Employers are required to maintain an original Form I-9 and supporting documentation for all current employees. Employers also must retain an I-9 file for at least 3 years from the employee’s hire date, or 1 year after the employee’s termination date, whichever is longer.
For more information on worksite enforcement issues, please visit our website at: http://www.worksite-compliance.com.
Tags: I-9 Compliance, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Tuesday, November 24th, 2009
Immigration and Customs Enforcement (ICE) has issued its “Form I-9 Inspection Overview,” to educate employers on Form I-9 audits, and alert the public of its new penalty schedule. ICE’s Worksite Enforcement Unit released the I-9 Inspection Overview along with its announcement that it will issue a thousand new Notices of Inspection (NOIs) to employers, as Klasko reported on November 20, 2009. Form I-9 is used by employers to verify the work authorization of new employees hired after November 6, 1986.
A complete description of the inspection and fine process, after the jump.
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Tags: I-9, I-9 Compliance, ICE, Worksite Enforcement
Posted in Worksite Enforcement | Click Here To Comment »
Thursday, October 29th, 2009
Today, President Barack Obama signed into law the 2010 fiscal year Department of Homeland Security Spending Bill. The law extends four immigration related programs including the:
1. The EB-5 Regional Center Program, which allows immigrant investors seeking a greencard to invest $500,000 in a USCIS approved regional center;
2. E-Verify the internet-based Employment Eligibility Verification System run by USCIS that allows employers to electronically verify the employment eligibility of certain employees;
3. The Conrad 30 J-1 program which allows state health agencies to annually hire up to 30 foreign physicians to practice in rural and inner-city communities that often have difficulty recruiting physicians. The sponsored physicians are released from their two year home residency requirement if they work for a minimum of three years with the medically underserved population; and
4. The EB-4 Religious Worker Program which provides up to 5,000 permanent immigrants visas for religious workers which include ministers, professionals working in a religious vocation, and other workers in religious vocations.
The law also includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process.
Posted in Agency Updates, EB-5 Investor Visas, Green Cards, Hot Questions, News & Politics, Worksite Enforcement | Click Here To Comment »
Thursday, October 8th, 2009
This week, the Department of Homeland Security (DHS) issued a final rule rescinding the Social Security “No-Match” regulation. The so-called No-Match rule would have charged an employer with having “constructive knowledge” of the unauthorized employment of its employees if the employer failed to take certain steps in response to receiving a No-Match letter from the Social Security Administration, informing it that an employee’s name and Social Security Number provided for a W-2 earnings report did not match SSA’s records.
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Tags: I-9 Compliance, Immigration Compliance, No-Match, No-Match Rule, Worksite Enforcement
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Friday, August 28th, 2009
United States Citizenship and Immigration Services (USCIS) has announced an extension of the validity of Form I-9, and has made a PDF-fillable version available on their web site. The new edition contains no changes from the previous edition and USCIS stated they will continue to accept the February 2, 2009 edition in addition to the current edition, dated August 7, 2009.
Tags: Agency Updates, I-9, I-9 Compliance, Worksite Enforcement
Posted in Agency Updates, Worksite Enforcement | Click Here To Comment »
Wednesday, August 26th, 2009
We have previously reported on a lawsuit by the US Chambers of Commerce and other groups that was decided today. The lawsuit challenged the amendments to the Federal Acquisition Regulations (FAR) that require most companies with federal government contracts to enroll in the E-Verify system. The FAR amendments were originally promulgated in November of 2008, and the Obama Administration has indicated it wants the amendments to take effect September 8, 2009.
The court was asked to rule on both sides’ motions for summary judgment – essentially, requests by both sides to end the lawsuit because the facts and law were clear. The Chambers argued, essentially, that because Congress had made the E-Verify program voluntary, but the new Federal Acquisition Regulations made the program mandatory for federal contractors, the FAR amendments violated Congress’ express directive and were invalid. The government’s argument, in essence, was that the FAR amendments did not make E-Verify mandatory – that a company could always choose not to seek federal contracts, in which case the company would not have to participate in E-Verify.
The court agreed with the government’s position, dismissing the Chambers’ lawsuit and clearing the way for the FAR amendments to go into effect on September 8, unless the Chambers appeal the court’s decision.
Congress may also get in the action, as the E-Verify program is still set to “sunset” as of September 30. A provision extending the program (and providing explicit statutory authority for the FAR provision) was included in the Senate’s bill funding the Department of Homeland Security, but has not yet been enacted.
Tags: E-Verify, Worksite Enforcement
Posted in Hot Questions, Worksite Enforcement | Click Here To Comment »
Monday, June 15th, 2009
On June 10, 2009 the Department of Justice (“DOJ”) filed a request with the U.S. District Court for the Northern District of California for an extension until July 10, 2009 to file a memorandum in support of lifting the injunction against the implementation of the Social Security No-Match regulation. DOJ also requested an extension for filing its response to the plaintiffs’ motion for summary judgment.
In August 2007, a group of immigrant rights organizations as well as business and employer groups asked the federal court to enjoin the regulation from taking effect. In October of that year, a federal judge granted a preliminary injunction. Since that time the case has been in litigation.
Since taking office, Department of Homeland Security Secretary Janet Napolitano has requested the court to grant several extensions of time so that the government could prepare their pleadings in the case. According to court records, the extensions are aimed at providing Secretary Napolitano with sufficient time to review the regulation in the “context of the Obama Administration’s overall immigration enforcement policies.” Since the Obama Administration took office they have taken a step back from the Bush Administration’s focus on enforcement actions against unauthorized aliens. Rather, they have stated that their top immigration enforcement priorities are towards employers who hire unauthorized workers in violation of federal immigration law.
The Social Security No-Match regulation provides that an employer’s failure to take reasonable steps after receipt of a Social Security No-Match letter can lead to a finding that an employer had “constructive knowledge” of the fact that an employee is an unauthorized alien. Under the Rule, employers would be exposed to increased liability if they fail to take a prescribed course of action termed a “safe harbor” upon receipt of a no-match letter.
The rule, while temporarily prevented from going into effect by a federal court in California, in many ways is only a codification of obligations employers have had since 1986. The Rule requires employers to take certain affirmative steps to resolve questions about an employee’s employment authorization; if the employer fails to take those steps, it can be found to “know” that the employee was not authorized.
For more information on the no-match regulation and how I-9 compliance requirements affect your business please visit our website http://www.worksite-compliance.com.
Tags: I-9 Compliance, No-Match
Posted in Worksite Enforcement | Click Here To Comment »
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