USCIS Introduces New U.S. Passport Photo Matching For E-Verify

On October 4, the U.S. Citizenship and Immigration Services ("USCIS") hosted a webinar for employers to introduce the latest improvement to the E-Verify system, the addition of U.S. Passports and Passport Cards (collectively, "Passports," and individually, a "Passport") to the photo-matching process.

 

Photo matching is a feature of E-Verify that allows an employer to compare a newly hired employee's Employer Authorization Document ("EAD") or Permanent Resident Card ("Green Card") to the image of the card stored in the database of the U.S. Department of Homeland Security ("DHS"). However, this feature may be used only after: (i) the employee has attested to being a lawful permanent resident and/or authorized to work in the United States; (ii) the employee presents a newer version of a Green Card or EAD at his or her own initiative; (iii) E-Verify has confirmed the employee's employment eligibility; and (iv) any Tentative Nonconfirmations ("TNC") from the Social Security Administration or USCIS have been resolved. The present photo-matching process does not currently have the capability to verify the authenticity of older green cards, older EAD cards, or any of the other identification documents that an employee may present when completing the I-9 process.

 

Although part of E-Verify's overall photo-matching process, the photo-matching process for Passports has some key differences compared to the photo-matching process used for Forms I-751 (Green Cards) and I-766 (EADs). For example, one difference involves when to display a TNC case result. With the photo-matching process for Passports, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves the TNC, E-Verify will require the employer to complete the photo-matching step before displaying a case result. In the photo-matching process for Green Cards or EADs, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves it, the employer must display the case result immediately before moving forward with the photo-matching step. Additionally, it is very possible that E-Verify may not be able to access the employee's photo during the photo-matching process. If this occurs during the Green Card or EAD photo-matching process, the system will simply bypass the photo-matching screen altogether. However, during the Passport photo-matching process, the system will provide a "No Photo on this Document" message and employers must proceed with the process.

 

Another interesting difference is that, when photo matching Green Cards or EADs, E-Verify will display a thumbnail photo when viewing the case details. This, however, is not the case for Passports because the USCIS is not able to store Passport photos. Yet, E-Verify will display a thumbnail photo that an employer may attach and submit when referring a photo mismatch TNC to DHS. E-Verify will display this thumbnail photo whether the document is a Green Card, an EAD, or a Passport.

 

As of April 3, 2009, for employment verification (Form I-9) purposes, employees must present an unexpired Passport. E-Verify will now enforce this rule by looking to determine if the "hire date" is on or after April 3, 2009. If the hire date is before April 3, 2009, the system will accept an expired Passport (good news for federal contractors needing to submit older I-9 forms showing valid passports at the time). If the hire date, however, is on or after April 3, 2009, an error message will appear and the case will be automatically discontinued. The employer's only option is to create a new E-Verify case.

Two-Part Series Seminar: Employment Verification Issues for Employers:

 
 

 
Two-Part Series SeminarForm I-9 and E-Verify Training
Employment Verification Issues for Employers:

Presented by
Hector A. Chichoni, Esq., EpsteinBeckerGreen
  
 

Since its inception more than two decades ago, employers have failed to fully comply with the Immigration Reform and Control Act (IRCA) of 1986. As a result, Form I-9 compliance levels among employers are of great concern. With the government cracking down on compliance, employers need to take immediate steps to get their I-9 “houses” in order.

Moreover, on September 14, 2009, Alejandro Mayorkas, head of U.S. Department of Homeland Security, Citizenship and Immigration Services, told reporters that the agency is “taking steps to prepare for the possibility that E-Verify may become mandatory for all employers” adding that “it is our responsibility to be ready should E-Verify ever be required of all employers.”

 

We are conducting a two-part interactive Form I-9 and E-Verify training program to offer hands-on training to ensure the attendees are confident, knowledgeable and capable of managing I-9 and E-Verify compliance.
 
 
WHERE
The Miami City Club
 
200 South Biscayne Boulevard
55th Floor
Miami, Florida 33131
 
 
Part  I
Form I-9 Training
 
Form I-9 training is the first part of the two-part series which includes copyrighted training materials with practical examples along with useful documentation and resource materials. The components of part one, Form I-9 Training, includes:
  • In-depth look at I-9 Completion, Documentation and Receipt Rules.
  • Forensic training for questionable documents.
  • Review internal process for re-verification and notification tracking.
  • Establish an I-9 correction process.
  • Provide self-evaluation and team-based testing.
  • Help you learn how to process the I-9 form correctly;
  • Raise your comfort level in working with the documents and policies involved;
  • Enable your company to ensure the employees are authorized to work and are compliant with I-9 standards;
  • Serve as a quick and easy job aid and reference whenever needed.
  •  
E-Verify training, the second part of the two-part series, will help you get the information you need to properly weigh the pros and cons of the E-Verify system, you will learn what every employer should know about the electronic employment verification system:
  • How federal contractors are troubleshooting E-Verify issues
  • What chances have been made, what problems have been solved, and what problems remain.
  • How the government is increasing its worksite enforcement activity
  • Best practices for avoiding worksite enforcement actions
  • How to find out if your organization is being targeted from an audit, and what agents look for in an audit
  • Your legal recourse if ICE agents arrive on site
  • The potential civil and criminal consequences for employers from an audit
  • Recent government actions to fine employers for immigration violations
  • Your legal recourse if fines are levied against your organization
  • What happens to workers who can't prove they're authorized to work in the U.S.
  • How the government's new audit strategy impacts the current debate on making E-Verify mandatory for all employers              
Part II
 E-Verify Training
Date and Time: Thursday, October 21, 2010, 8:30 am - 10:30 am
Date and Time: Thursday, September 30, 2010, 8:30 am - 10:30 am
 

REGISTRATION FEE
The fee for this event is $25 for each session, or you can purchase both sessions in advance for $35.  This fee includes breakfast, parking and training materials. 
 


 
To register, please .click here

If you have any questions about this briefing, please contact 

Anneliese Garcia, (305) 579-3200, or agarcia@ebglaw.com
 
About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.
 

 

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Hilton In Naples, FL Signs Up For The IMAGE Program

 

On May 26, 2010, the Hilton Naples signed an agreement with U.S. Immigration and Customs Enforcement (ICE) to participate in the voluntary IMAGE program. This is the first company in the city of Naples, Florida to sign up for the IMAGE program. IMAGE, or ICE Mutual Agreement between Government and Employers, is a government initiative designed to improve employer self-compliance. Employers participating in IMAGE must submit first to a Form I-9 audit by ICE and verify all of their employees' social security numbers through the Social Security Number Verification System (SSNVS). Employers are also obligated to  sign up for E-Verify, conduct I-9 audits semiannually using a neutral party, ensure that only trained employees complete Form I-9 and use E-Verify, set protocols for responding to no-match letters, and much more. Employers using E-Verify must sign a Memorandum of Understanding or MOU which requires them to allow ICE (DHS) and SSA or their authorized agents or designees to "make periodic visits" to the employer.

IMAGE is NOT a “safe harbor” for employers. ICE has not indicated that IMAGE “partners” will not be subject to enforcement actions. Moreover, E-Verify participants have been subject to worksite enforcement actions. Given ICE’s inspection powers under IMAGE an employer should seriously consider the consequences of implementing these practices.

SAVE Act Reintroduced in House and Senate

On July 23, 2009, a bipartisan group in the House and Senate reintroduced “The Secure America Through Verification and Enforcement Act” (“SAVE”), which would require employers to use E-Verify to ensure that their workers are authorized to work in the country. This SAVE legislation is largely the same as the bill first introduced in Congress on November 6, 2007.  According to its sponsors, the SAVE is designed to reduce illegal immigration by gradually phasing in the use of E-Verify and increasing border security with additional border patrol agents and new technology and infrastructure.

The SAVE legislation would phase in the mandatory use of E-Verify by employers over a four year period, starting with the federal government, federal contractors, and employers with more than 250 employees. Smaller businesses would be required to begin using the E-Verify system in a graduated manner. While passage now is uncertain, the reintroduction of the SAVE legislation reflects the public’s growing desire that employers hire and maintain only a documented workforce. Considered in this context, and examined against all the states that have passed legislation requiring the use of E-Verify, employers would be well advised now to become familiar with E-Verify so they can readily incorporate it into their operations when it becomes mandatory at the federal level.

Webinar: Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

On September 3, Hector A. Chichoni will be teaching the webinar Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does

Hector has counseled employers on the proper use of the new I-9, work site enforcement, "no-match" problems, and compliance with state and federal immigration laws

Thursday, September 3, 2009
11:00 a.m. to 12:30 p.m. Eastern
10:00 to 11:30 a.m. Central
9:00 to 10:30 a.m. Mountain
8:00 to 9:30 a.m. Pacific

On July 1, 2009, U.S. Immigration and Customs Enforcement informed hundreds of U.S. businesses that agents would be auditing their I-9s and other hiring records. And just this April, the Obama administration issued new guidelines for ICE agents to change the enforcement focus to employers.

Learn what action you can take NOW to keep ICE from targeting your organization and your first course of action if your company is audited by participating in the all-new HR Hero audio conference, Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does.

Hector A. Chichoni will show you the specific red flags agents are looking for in ICE audits, as well as:

The tell-tale signs ICE may be targeting your organization
Your first recourse if enforcement agents arrive on site
The potential consequences when ICE agents audit your records
Typical fines and other actions immigration enforcement agents are taking against violators
Your legal options if fines are levied against your organization
Your first course of action if you have workers who can’t prove they’re authorized to work in the United States
How ICE's new audit strategy could impact whether E-Verify becomes mandatory for all employers
What employers can expect from future immigration compliance and enforcement initiatives
What every employer needs to know about immigration reform efforts

All receiving this information will be entitled to a 20% discount on the audio conference. To receive the discounted rate, you will need to call HR Hero customer service department at 800-274-6774 and mention code M899.

U.S. Senate Approved Several Amendments Dealing With Immigration Enforcement Not Included In The 2010 Homeland Security Appropriations Bill (H.R. 2892)

On Wednesday, July 8, 2009, the Senate approved several amendments dealing with immigration enforcement and benefits which were not included in the 2010 homeland security appropriations bill (H.R. 2892) passed previously by the House. An amendment introduced by Senator Jeff Sessions (R-Ala) dealing with E-Verify was passed by a voice vote after a motion by Sen. Schumer (D-NY) to table it was rejected 44 to 53. Sen. Sessions’ amendment is extremely important because it could make the voluntary E-Verify program, in its present form, permanent and mandatory for all federal contractors beginning September 8, 2009.

The final federal contractor’s rule, which extends the use of E-Verify to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, came as a result of Executive Order 12989. The rule was originally scheduled for roll-out last January 15, 2009, but had to be postponed because of a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of Maryland challenging the legality of the rule.

The version of the bill passed previously by the House on June 24th would extend the E-Verify program for only two years. Thus, the existing differences between the amended version passed by the Senate and the House bill will have to be reconciled and a final version will need to be agreed upon in conference before changes can take effect.

Secretary Napolitano announced early on July 8th the department’s intention to rescind the controversial No-Match Rule in favor of the “more modern and effective” E-Verify. In a surprising but decisive response, the Senate also adopted an amendment from Senator David Vitter (R-LA) that would prohibit the U.S. Department of Homeland Security (“DHS”) from using any Fiscal Year 2010 appropriated funds to rescind the No-Match Rule.

Sen. Schumer, who led the effort to table Sen. Session’s amendment, stated that declarations made earlier by DHS Secretary Janet Napolitano that the Administration would support a regulation that requires employers to use E-Verify in order to be awarded federal contracts had rendered the amendment “moot.”

However, the real reason for Sen. Schumer’s opposition is that the present administration wants to enact immigration compliance laws that target employers and, Republicans, now the minority in the Senate, want to enact immigration compliance laws targeting employees. But in a surprising move, supported by a few Democrat senators, all amendments dealing with immigration enforcement offered by Republicans were approved.

More concerning for employers, however, is the apparent administration’s pursuance of a more capable and technologically advanced version of E-Verify. Sen. Schumer has stated repeatedly that E-Verify does not “go far enough” and made clear in several occasions that he favors a hi-tech employment verification system which employs biometric identifiers such as fingerprints, eye scans, and more. Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool” has also made clear, in agreement with Sen. Schumer that “we need to continue to work to improve E-Verify, and we will.”

These declaration not only indicate that the Obama administration and key democratic leaders in Congress share the view that immigration compliance should target employers, but also, as it would appear, through the use of an “improved” or, in other words, a more capable and technologically advanced E-Verify that could include not only biometric identifiers, but also information sharing capabilities linked to other governmental agencies. 

The possibility of an “improved” version of E-Verify does not seem far-fetched when considered in light of present existing Memorandums of Understanding between governmental agencies which already allows for information sharing, past joint raids, and an appropriations bill which provides for $5.4 billion to fund DHS’s employment verification activities.

Further, such “improved” E-Verify, despite the potential tremendous governmental invasion into the workings of private institutions, could give the Obama administration a serious “footing” in dealing with millions of illegal immigrants, which can be “politically” cashed at a later time. 

So far it is unclear what immediate effects the Sessions and Vitter amendments would have if enacted. Both the federal contractor and No-Match Rules are currently suspended due to ongoing litigation.

Alert: ICE Serves 652 Businesses Nationwide With Notices of Inspection

On July 2, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) launched a new and bold initiative to audit companies by issuing Notices of Inspection (“NOIs”) to 652 businesses nationwide.

ICE has stated these “audits are not random” and that the businesses were identified based on “leads and information obtained through other investigative means.” These notices are the government’s first step in what could be the beginning of a very lengthy investigation. ICE officers plan to review the I-9 forms and identification documents of all 652 companies. ICE has also stated that those with significant numbers of undocumented workers may be fined. And, if agents believe the businesses “knowingly hired” illegal immigrants or find “a pattern of egregious violations” criminal investigations could be launched. Pat Reilly, ICE’s spokesperson, said that ICE would not “release the names or locations of the businesses that are being audited because of the ongoing investigations” and that the targeted businesses “represent a broad range of industries.”

However, it has been reported that ICE notified 80 companies in California, including three in Los Angeles, which ICE plans to fine because they employ large numbers of people who do not appear to be authorized to work in the U.S. ICE agents had conducted audits on these companies’ records earlier, and in many cases determined that the Social Security numbers listed for employees either did not exist or did not belong to the employees specified.Targeted companies also include businesses in New York, San Antonio, Seattle, and San Diego. ICE has also sent audit notices to 32 companies in Arizona. For a long time the government has been seeking new ways to impose E-Verify on all US employers. I believe the strategy behind these notices is to paint a picture of rampant immigration violations so, come September 2009, Congress will make E-Verify mandatory for every employer. For as much as the government loves E-Verify, it will never be a substitute for immigration reform or stop illegal immigration.


 

Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers

One of my articles,  Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers, was recently published by ILW.  I am reproducing it here in its entirety for your perusal: 

"President Obama made it clear that his immigration plan, among other things, was to "remove incentives to enter illegally." However, the Obama administration has not provided any details as to how is going to accomplish this portion of its plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama administration has sent out "immigration signals" and U.S. employers should be prepared.

The most important of these immigration signals, perhaps, was Secretary Napolitano's appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration's plan. This is not only part of a well calculated move, but, as it would appear, the foundational step necessary to set President Obama's immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with clear enforcement views. She is one of the most experienced state executives in the nation in the immigration arena and one of the very few high ranking democrats qualified, should one be enacted, to handle a comprehensive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a "technology-driven border control" and the penalizing of employers hiring undocumented workers.

Secretary Napolitano has indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on "unscrupulous employers" rather than on undocumented workers. She has also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers "of unlawful workers are prosecuted for their violations."

Moreover, Napolitano has pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to "establish sound compliance programs that prevent unlawful hiring." She also aims to continue boosting manpower on the borders and the use of technology. At the same time, she has stated that her full intention is to enforce these methods in a fair manner across borders, ensuring that the law is applied. This, of course, represents a 180 degree shift from the Bush administration's approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecute employers.

In short, comprehensive immigration reform, whether in piece-meal or in one whole act, will be enacted. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the "DEA-type" actions with all their inefficiencies and social negative effects seen under the Bush administration. Under Secretary Napolitano, possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called ICE "inspections" will continue and, possibly, increase. Investigations conducted by the FDNS (Office of Fraud Detection and National Security) to detect, deter, and combat immigration benefit fraud to strengthen USCIS' goals and efforts will also increase. Technology based programs such as E-verify will rule and many could become mandatory for all U.S. employers. Immigration attorneys will be well served by advising their corporate clients to put their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order."

Obama Administration's Immigration Approach with Napolitano will Point to Employers

President Obama made it clear that his immigration plan was to “bring people out of the shadows, improve our immigration system, create secure borders, remove incentives to enter illegally and honor our immigrant troops.” However, the Obama administration has not provided any details as to how it is going to accomplish this plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama has sent out “immigration signals” and employers should be prepared to feel the effects.

The most important of these immigration signals was Secretary Napolitano’s appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration’s plan. This is not only part of a well calculated move, but the foundational step necessary to set President Obama’s immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with strong enforcement views. She is one of the most experienced state executives in the nation with immigration and one of the very few qualified to handle a massive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a “technology-driven border control” and the penalizing of employers hiring undocumented workers.

Secretary Napolitano indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on “unscrupulous employers” rather than on undocumented workers. She also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers “of unlawful workers are prosecuted for their violations.” Moreover, Napolitano pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to “establish sound compliance programs that prevent unlawful hiring.” She also aims to continue boosting manpower on the borders and focusing on technology, such as ground sensors. At the same time, it is her full intention to enforce these methods in a fair manner across borders, ensuring that the law is applied.

This represents a 180 degree shift from the Bush administration’s approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecuting employers under the theory that actual convictions were hard to get.

In short, immigration reform, whether in piece-meal or in one whole swap, will be enacted in 2009 or 2010. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the “hyper-criminalized” actions conducted under the Bush administration with their inefficiencies and social negative effects.

Under Secretary Napolitano, DHS, the Immigration and Customs Enforcement, and possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called “inspections” will escalate. Technology based programs such as E-verify will rule and could become mandatory for every employer in the U.S. Wise employers will be served well by putting their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order.
 

E-Verify Dropped From Stimulus Bill

A provision in the $787 billion stimulus bill that would have required employers receiving federal stimulus money to use E-verify was dropped from the bill. This move is a victory for employers in the construction business receiving assistance from the stimulus bill.

A representative from the American Civil Liberties Union (“ACLU”) recently stated that E-Verify is "flawed" as an employment authorization verification system and that forcing employers to use it would have held Americans "hostage to bad government data and even worse government database systems."

Also eliminated from the final conference report is a provision that extended the E-Verify program beyond March 6, 2009, when it is set to expire. It is expected, however, that E-verify or a similar program could be established permanently by the Comprehensive Immigration Reform (CIR) sometime before the end of this year.
 

ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap

I am reproducing in its entirety the following article, I think you should read it:

"ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap By SUSAN CARROLL Copyright 2008 Houston Chronicle, Sept. 9, 2008, 10:52PM

With high-profile workplace immigration raids making news across the country, many employers might not seem eager to sit face-to-face with an Immigration and Customs Enforcement agent and open up their books for scrutiny. But Betsy Kippenhan, an executive with a Houston-based staffing firm, seemed downright excited about it, speaking fondly of the "ICE advocate" who will be helping the company, Talent Tree, verify its worker eligibility through an ICE program called "IMAGE."

"We wanted to make sure they were going to look at us and give us the stamp of approval, which is what they've done," said Kippenhan on Tuesday after formally signing up for ICE's self-policing program for employers. But some immigration attorneys and labor advocates warned that IMAGE could be a legal trap for employers who haven't been vigilant examining workers I-9 forms, which establish eligibility to work in the U.S. In exchange for free education and training, companies participating in IMAGE (Mutual Agreement between Government and Employers) agree to meet certain requirements, including using the federal government's Internet-based employment verification system and checking workers' Social Security numbers. Employers also must agree to an ICE audit of workers' employment paperwork and promise to self-report any violations of hiring law.

Membership growing
ICE spokeswoman Pat Reilly said the program started small in January 2007 with only nine members. On Tuesday it added 26 members and 11 associate members, a category created in June to give employers two years to get their paperwork in order before submitting to an ICE audit or producing an annual report. The membership rolls range from small businesses like the Bellaire-based construction company All American Brothers, to big names in government contracting, like General Dynamics. Smithfield Foods Inc., which employs more than 57,000 people worldwide, also is an associate member. Reilly said some employers expressed an interest in the program after "someone else in their industry was the subject of a worksite enforcement" raid. ICE has stepped up its worksite enforcement in recent months, reporting 3,900 arrests for immigration violations and more than 1,000 criminal arrests from worksite enforcement investigations in the past 10 months. According to ICE, 116 owners, managers, supervisors or human resources employees, were facing criminal charges in connection with on-the-job raids, including harboring or knowingly hiring undocumented workers.

'A poor image'
For some companies, Reilly said, the program is "brand protection, and an insurance against 'headline risk'. You don't want your brand bandied about as somebody who doesn't comply with the law because then you lose clients' confidence." Kathleen Walker, an El Paso attorney and executive committee member with the American Immigration Lawyers Association, said IMAGE "has a poor image" and has attracted few participants. "I think it's a mirage," Walker said. "Employers can put themselves into a trap signing up for IMAGE." Charles Foster, a Houston immigration attorney with Tindall & Foster, urged employers to use caution before signing up for the program, particularly if "their house is not in order." "On the surface, there is nothing wrong with it," he said. "But there are concerns that employers should be aware of. You're effectively inviting the government to review all of your employment verification forms. That could produce significant civil and criminal liability."

'Not a trap'
Foster and Walker pointed to a raid of the Swift & Co. meatpacking plants in December 2006 in Texas as an example of what can go wrong with private partnerships with ICE. Swift had voluntarily participated in the government's electronic employment verification system for more than a decade before the raids, which resulted in more than 1,200 arrests at six meatpacking plants. Reilly said E-Verify is a "free, easy-to-use tool," but is not a stand-alone solution to detecting undocumented workers. She said hiring practices at Swift plants showed a pattern of blatant illegal behavior. Reilly said IMAGE is "not a trap," pledging that ICE will work with businesses that participate in the program. "When we look at their records ... and patterns that might indicate an illegal workforce, we're not going to say, 'You have to come into compliance by tomorrow.' " Reilly said. "But what we are going to look for is if there is any illegal activity going on in their workplace, we're going to ask them to take care of that first, like stolen identities and flagrant fraudulent documents." Hector Diaz, the president of All American Brothers Company based in Bellaire, called the program "the wave of the future." He signed up as an associate member on Tuesday, and completed his first day of IMAGE training in Arlington, Va., saying the program has become an necessity for his roughly 20-employee construction company, which works exclusively on government contracts. "I think it's going to be a requirement for federal contract work," said Diaz, whose recent projects included work at Ellington Field and NASA. "You can't be working on a government contract and have an illegal alien."

Reassuring clients
Ruth McCurdy, vice president for corporate connections for Talent Tree, which employs 35,000 temporary associates and about 250 staff members nationwide, said one of the main goals is to reassure clients that workers placed with their companies by the staffing firm are eligible to work in the U.S. "There are companies out there that employ illegal aliens and put them in companies, and that puts a lot of people at risk," McCurdy said. "When you are working with a third party for your workforce, you need to know you have a partner that has people who have passed the eligibility requirements."

 

USCIS INFORMS THE PUBLIC THAT NEW PASSPORT CARD IS ACCEPTABLE FOR EMPLOYMENT ELIGIBILITY VERIFICATION

On August 8, 2008, USCIS issued a statement informing the public that the new U.S. Passport Card may be used in the Employment Eligibility Verification form (I-9) process. USCIS also stated that "...last month, the Departments of State and Homeland Security announced that the new passport card was in full production. The new card provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda. While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program." USCIS states that the passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

House Approves Measure To Extend E-Verify by Five Years

On July 31, 2008, the House approved "H.R. 6633" to extend E-Verify, the federal government's electronic employment verification system, by five years. In spite of the many signs previously given by U.S. Representatives approved without amendment, HR 6633 or the Employee Verification Act of 2008, 407-2.

The legislation was introduced by Rep. Gabrielle Giffords (D-Ariz.), would amend the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to extend the life of the voluntary program five years to Oct. 31, 2013. U.S. representatives initially supported legislation to scrap E-Verify in favor of a new mandatory verification system, but according  Giffords, she introduced a five-year extension to make time for more study of the current system. Further, Giffords told lawmakers during House floor remarks that "within five years or less, the federal government must develop a mandatory system that operates uniformly across all 50 states." Technically, the bill would authorize two Government Accountability Office studies about aspects of E-Verify. The first study would examine erroneous tentative nonconfirmations under E-Verify, specifically focusing on the causes of erroneous tentative nonconfirmations, processes to remedy errors, and the impact of such errors on individuals, employers, and federal agencies. The second study would analyze the effect of E-Verify on small businesses and other small entities using the program. That study would focus on the cost to small entities of complying with E-Verify, an estimate of the number of small businesses participating in E-Verify, an analysis of compliance requirements such as reporting and recordkeeping, and steps DHS can take to minimize the economic impact of participating in E-Verify. 

I agree with SHRM that E-Verify is not a long-term solution.  A "temporary extension" in order to allow additional time to design a fair and effective employment verification system is a workable proposition for employees and employers alike. The bill now moves to the Senate, which is in recess until Sept. 8, 2008.

Missouri Latest State To Enact E-Verify Requirement

On July 7, 2008, Missouri Governor Matt Blunt signed a bill, effective January 1, 2009, requiring employers contracting or receiving grants from the state in excess of $5,000  to use E-Verify.  Missouri joins a growing number of states that, in the absence of a federal comprehensive immigration reform act, have chosen to regulate the employment of illegal workers. The Missouri bill shares similarities to other bills enacted in states such as: Colorado, Georgia, Minnesota, Oklahoma, Rhode Island, and Utah. However, this bill goes further by requiring employers with state-administered tax credits, tax abatement, or state-administered loans to also use E-verify. The bill also gives Missouri's Attorney General the authority to enforce the act.  Missouri's Attorney General may now demand: 1) employers to provide identification information on their employees; 2) employers to provide identification documents within 15 business days of receiving such a request.  Failing to abide by the request could result in the suspension of a company's applicable local licenses, permits, and exemptions until the documents are supplied, 3) employers to classify its employees correctly (i.e. knowingly classifying an employee as an independent contractor when he/she is not carries fines ranging from $50 to $50,000.)  A contractor will not be liable for the unauthorized employment of an illegal alien if a subcontractor employing the individual provides a sworn affidavit that the employee is authorized to work in the US. Missouri's law does not substitute the federal requirement to complete Form I-9 Employment Eligibility Verification.

New Employment Verification I-9 Form

Today we received the new employment verification From I-9, edition date 06/16/08. Be aware that no previous edition of the same form will be accepted. Please, also note there are several important changes made to the Form I-9 process:

  • Five documents have been removed from List A of the List of Acceptable Documents: Certificate of U.S. Citizenship (Form N-560 or N-561), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (I-151), Unexpired Reentry Permit (Form I-327), Unexpired Refugee Travel Document (Form I-571);
  • One document was added to List A of the List of Acceptable Documents: Unexpired Employment Authorization Document (I-766);
  • All Employment Authorization Documents with photographs have been consolidated as one item on List A: I-688, I-688A, I-688B, I-766;
  • Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify;
  • Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.

All employers in Florida should switch to the new form ASAP and used moving forward regardless of any time line provided by the government.  This Will avoid any confusion later on.  The new Form I-9 can be downloaded by clicking here.

GAO on E-Verify

In its report of June 2008, the U.S. Government Accountability Office (GAO) stated that while E-Verify may help employers detect fraudulent documents (and I would say indirectly), it cannot fully address the use of legitimate documents.  This issue can only be fully addressed by individuals owning those documents. The GAO also points out that E-Verify is vulnerable to employer misuse and even, fraud. 

Given our adversarial system many employers worry that firing an employee based on what could turn out to be an E-verify error could still land them a discrimination charge under the Immigration Reform and Control Act of 1986 (IRCA). IRCA prohibits discrimination when hiring and firing based on the basis of citizenship status or national origin.  Such discrimination could result from firing an individual based on lack of employment authorization when the individual is in reality authorized. 

South Carolina Passes Illegal Immigration Reform Act

On June 4, 2008, Mark Sanford, governor of South Carolina signed into law an omnibus immigration bill (HR 4400), which requires employers to verify the identity of employees with either a South Carolina driver's license or through E-verify.  This bill also denies non-emergency medical care for undocumented adult immigrants by state funded clinics and hospitals. One important issues is that because federal law requires that care be given without discrimination, local healthcare providers will be facing a significant challenge in following the law. In recognition of this challenge, perhaps, no state agency is tasked with enforcing the new restrictions. Further, the new law goes on to prohibit undocumented immigrants from attending public institutions of higher education or receiving state funded scholarships. One particular and concerning issue is that the chief of the South Carolina Law Enforcement Division is mandated to enter into a Memorandum of Understanding (MOU) with the federal government (ICE) regarding enforcement of federal immigration law. The new law also also allows for law enforcement personnel to be deputized and trained for these duties. According to AILA, the bill contains similar language to Oklahoma's Taxpayer and Citizen Protection Act of 2007 (H.B. 1804). 

In the mean time, South Carolina's Department of Labor, Licensing and Regulation has established a Web site to assist employers comply with the new immigration law. But the new law mandates the Labor Department to investigate complaints against companies who are hiring illegal immigrants. According to the new law, South Carolina's Labor Department is also responsible for randomly auditing businesses to verify employees’ legal status. Businesses with 100 or more employees must comply by July1, 2009 and all other businesses must follow the law by July 1, 2010. The new Web site is www.llr.state.sc.us/immigration. Georgia also has a similar law.  Is Florida next?

House Appropriations Committee Approves DHS Funding Bill, Rejects E-Verify Extension

On June 24, 2008, The House Appropriations Committee approved a U.S. Department of Homeland Security funding bill for $39.9 billion.  However, the bill also rejects an amendment to extend the federal electronic employment verification program or E-Verify.

The approved bill carries an increase of $2.2 billion from that of 2008. The amendment submitted by Rep. Ken Calvert (R-Calif.) extending the E-Verify program did not have enough votes at the committee level to pass. Without the extension, E-Verify is scheduled to expire November 30, 2008.

New Rule Proposes E-Verify for Certain Federal Contractors

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council ("Councils") are proposing to amend the Federal Acquisition Regulation to require certain contractors and subcontractors to use the U.S. Citizenship and Immigration Services’ ("USCIS") E-Verify system as the means of verifying that employees are eligible to work in the United States. Government agencies affected by the proposed are the Department of Defense (“DOD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”). The proposed rule states: "This rule proposes to amend the Federal Acquisition Regulation (“FAR”) to require that certain contracts contain a clause requiring that the contractor and certain subcontractors utilize the E-Verify System to verify employment eligibility of all newly hired employees of the contractor or subcontractor and all employees directly engaged in the performance of work in the United States under those contracts." Stay tuned, this is just the beginning.

Federal Government Contractors Must "E-Verify" Employees' Eligibility To Work

On June 9, the White House announced that President Bush had signed on June 6 an Executive Order (“the Order”) amending Executive Order 12989. The Order, an aggressive move to keep illegal immigrants out of the US workforce, requires contractors and others doing business with the federal government to use E-Verify (formerly known as the Basic Pilot or Employment Eligibility Verification Program). E-Verify is an electronic employment verification system run by DHS in partnership with the Social Security Administration, which permits participating employers to electronically verify the employment eligibility of newly hired employees. E-Verify is voluntary for private companies, but mandatory for government agencies. The Order, which will also apply to new hires initially, in time, will affect millions of workers working for federal contractors nationwide. 

One of the problems with the Order requirements is that E-verify has shown some critical flaws even when operating in a relatively small environment.  E-Verify is also problematic from a business perspective because errors in the Social Security database can lead to flagging legal residents and citizens.  The June 10th's issue of the LA Times states that "Chertoff said E-Verify cleared 99.5% of qualified employees automatically. But in 2006 the Social Security inspector general found discrepancies in 17.8 million records for citizens and legal immigrants that would create a "significant workload" to correct. Lawmakers and other critics warned that forcing the more than 200,000 federal contractors to join E-Verify could overwhelm the Social Security Administration and create havoc for legal workers. 'As the administration requires more employers and workers to move into E-Verify, it should at the same time ensure that the system does not impinge upon U.S. citizens' fundamental right to earn a living,' said Rep. Zoe Lofgren (D-San Jose), head of the House subcommittee on immigration. Firms doing business with the government risk losing their contracts if they break federal rules. Some business executives worry the new requirement could add expenses. 'There's concern about increased costs and delays in hiring brought about by inaccuracies in the database,' said Neal J. Couture, executive director of the National Contract Managers Assn. Timothy D. Sparapani of the American Civil Liberties Union argued that E-Verify was 'not real immigration enforcement' because the system could not detect applicants who used documents stolen from legal workers. He predicted the system would prompt more identity theft by illegal immigrants.' 'American workers' identities are essentially going to become a black market commodity,' Sparapani said."

The Order states that the basis for requiring government contractors to use E-Verify is that the “Order is designed to promote economy and efficiency in Federal Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose workforce is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose workforce is more stable.”  I find the government’s statement suspicious because the government, although it has failed time and time again, has tried on repeated occassions to push legislation or regulations that would impose a mandatory electronic employment verification program on all US employers. Further, the Order is presented as being designed to promote "economy and efficiency" along with "stability and dependability," but the reality is that there is nothing economic, efficient, stable or dependable about skilled and unskilled jobs that cannot be filled because there are not enough American workers readily available to work. 

Interestingly, employers in the health care business using the Medicare program, janitorial services providing services to courts, universities getting federal student loans for its students or grants for some of its projects and programs, companies in the defense industry, and even contractors serving food in cafeterias in any government agency will be considered government contractors and will have to comply with this order.

The government in its zeal for security and enforcement is failing to consider the true economic impact these measures will have on employers and consumers. Enforcing this type of order in the absence of immigration reform which could provide employers with helpful avenues could doom - against contrary government opinion - many efficient employers.  I am not sure how the government is going to enforce this Order, but for us in Florida enforcing these measures could have a long lasting negative effect.