Immigration Compliance and Worksite Enforcement: A New Risk Management Concern for Employers in the Healthcare Industry
Copyright 2010 American Health Lawyers Association, Washington, DC.
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Hector A. Chichoni, Esquire
Robert S. Groban, Jr., Esquire
Frederick Warren Strasser, Esquire
Epstein Becker & Green PC
New York, NY, and Miami, FL
Introduction
As the current debate over healthcare reform has dominated the headlines, the business of running America’s healthcare institutions has never been more challenging. Healthcare executives are being forced to navigate their institutions through the most difficult economic and regulatory environment in recent history. In this article, we hope to ease that management burden by identifying an area of regulatory exposure—immigration compliance and worksite enforcement—that many healthcare executives may overlook as they struggle to address all of their other operational needs. The additional regulatory exposure from inadequate immigration compliance becomes even more critical when you consider the healthcare workforce’s sheer size. The U.S. Department of Labor (DOL) identifies the healthcare industry as the country’s largest employer, accounting for more than fourteen million jobs annually.1 The DOL also estimates that the healthcare industry will add another three million new jobs from 2006-2016, more than any other industry. Managing a diverse healthcare workforce has never been simple given the unique way in which most hospitals and other healthcare institutions function. Unions, medical practices within hospitals, independent contractors, and third-party contractors can be found in nearly every large healthcare organization, along with a complex matrix of professional, quasi-professional, and non-professional employees that must be recruited, trained, and managed in a manner that comports not only with labor and employment laws, but also with regulatory requirements, licensing, and union agreements. Amid this vortex of legal obligations, it is easy to overlook the increasingly important legal responsibility of Form I-9 compliance. 2 As recent actions by the administrations former President George Bush and President Barack Obama demonstrate, however, the failure to address immigration compliance can have serious civil and criminal consequences to the organization, as well as its employees and senior management.
IRCA and Worksite Enforcement
When Congress passed the Immigration Reform and Control Act of 1986 (IRCA),3 it made it unlawful for employers to hire or retain undocumented workers and established a process, the Form I-9 process, that required employers to verify the identity and employment eligibility of all workers hired on or after November 6, 1986.4 In the twenty years following IRCA’s enactment, the Immigration and Naturalization Service and, later, its successor, Immigration and Customs Enforcement (ICE), targeted egregious violators and deported illegal workers— but levied few significant civil or criminal penalties against employers. When larger organizations were involved, the fines tended to be so minimal that they were not really considered a “serious” compliance issue. The regulatory calculus surrounding worksite enforcement changed radically following the September 11, 2001, terrorist attacks. This precipitated creation of the U.S. Department of Homeland Security (DHS) and led to substantially increased funding for worksite enforcement and border security. 5 Later, the Bush Administration’s support for comprehensive immigration reform created such a hostile public environment against undocumented workers that worksite enforcement, coupled with enhanced border security, were seen as essential prerequisites to any meaningful dialogue on how to fix the country’s broken immigration system. The result was an unprecedented number of public enforcement actions by the Bush Administration that focused primarily on rounding up illegal workers, not penalizing their employers. 6 The Obama Administration has pursued a different approach toward worksite enforcement and expanded its efforts beyond Form I-9 compliance to include H-1B fraud, 7 wage and hour complaints, compliance with the Public Access File requirements of the H-1B program,8 overall immigration fraud, and other areas where legal immigration and employment issues may intersect. As DHS Secretary Janet Napolitano noted, “DHS is focused on smart, tough and effective enforcement of the laws we currently have.” 9
The Vulnerability of Healthcare Employers to Worksite Enforcement Actions
The healthcare industry is not immune from regulatory scrutiny. Given the size and diversity of its workforce and increased union activity, the likelihood that healthcare employers will become targets for worksite enforcement actions seems apparent. This means that healthcare organizations need to identify the critical components of immigration compliance and then develop and incorporate more vigorous policies and procedures into their overall risk management program. Form I-9 completion and retention is the primary legal responsibility for most employers. Healthcare employers should have a uniform written policy for Form I-9 completion using only the form’s latest edition. 10 Such a policy is important to ensure that the organization not only confirms that all new employees are authorized to work, but also avoids discrimination claims that can arise when different Form I-9 completion procedures are used. 11 Under IRCA, an organization must retain its Form I-9 documentation for at least three years or one year following the employee’s termination—whichever is longer—and must make these forms available for inspection if requested by the DOL, DHS, or U.S. Office of the Special Counsel. An employer’s failure to properly complete and retain a Form I-9 provides the same basis for serious civil or criminal liability as if the form was never completed at all.
Under IRCA, an employer cannot use the Form I-9 process to screen candidates for employment. If a healthcare employer does not want to hire foreign nationals who require immigration sponsorship or have limited employment authorization, should it develop an employment application and interview process that will identify these candidates from the outset. 12 It should also implement an immigration employment policy which, among other things, defines the circumstances in which it will sponsor foreign nationals, if any. This policy should also make clear that the organization’s immigration sponsorship does not waive its employment at-will policies, guarantee success, or prohibit the organization from withdrawing its sponsorship for any reason or no reason at all. Such explicit language is particularly important in light of a decision like the Tenth Circuit’s ruling in DerKevorkian v. Lionbridge Technologies, Inc., 13 which held that an employer may have a fiduciary obligation to sponsor a foreign national in the absence of a specific policy. Proper completion of the Form I-9 process does not end an employer’s legal responsibility. Under IRCA, an employer who acquires “actual or constructive knowledge” that an employee does not have employment authorization can be subject to civil or criminal penalties. Such actual or constructive knowledge can arise in a variety of circumstances. For example, an employer would have reason to question the status of an employee who claims to be a permanent resident on his Form I-9—but then asks his manager for immigration sponsorship. Similarly, an organization that has information from a background check that contradicts the status claimed in the Form I-9 would also have constructive knowledge that the employee might be undocumented. Another common situation that might support a finding of constructive knowledge is the employer’s receipt of a “no-match” letter from the Social Security Administration (SSA). Prior to 2007, the SSA sent these letters to notify employers that the names and Social Security numbers (SSN) of certain employees did not match what the SSA had in its system. To ICE, an employer who fails to resolve this discrepancy has constructive knowledge that the subject employee(s) might be undocumented. 14 To the SSA, by contrast, these letters are simply correction requests issued to reduce the suspense fund and properly credit tax payments to the right employee. In this regard, the SSA neither has the authority to penalize employers that supply incorrect SSN information nor those that fail to respond to a no-match letter. While the SSA cannot share its no-match information with DHS under current law, the SSA can provide no-match information to the Internal Revenue Service, which does have the authority to investigate, audit, and ultimately fine the employer. 15 In 2007, the Bush Administration published a “safe harbor” rule that purported to establish a government-sanctioned procedure that employers could follow if they received a no-match letter. Those that followed this rule would receive safe harbor from criminal prosecution and protections against having constructive knowledge that an employee was not authorized to work. The rule was quickly challenged in federal court, which enjoined its implementation. 16 As part of this challenge, the SSA also voluntarily halted the issuance of new no-match letters until the litigation had concluded. On October 7, 2009, DHS rescinded its controversial no-match rule.17 ICE, however, still considers an employer’s receipt of and failure to address a no-match letter to be evidence of the knowing employment of an undocumented worker. With the rescission of the safe harbor rule, healthcare employers should be ready to receive new no-match letters from the SSA. Thus, they should have a policy in place for handling them as part of their overall immigration risk management practices. Of course, any employer who concludes that an employee does not have employment authorization must terminate that employee.
State Immigration Laws: The New Frontier
The failure of comprehensive immigration reform in August 2007 left the impression that the federal government was politically unable to deal with America’s immigration issues. Moreover, this legislative paralysis occurred as the 2008 presidential campaign was heating up and aspiring contenders lined up to demonstrate political toughness by proposing more rigorous measures addressing unlawful immigration. Colorado, the home of 2008 presidential candidate Representative Tom Tancredo (R), passed the first state legislation, which became effective on January 1, 2007. This law required all employers to sign a state affidavit verifying that their employees had work authorization and mandated that all state contractors use E-Verify, the federal government’s employment verification system. 18 Arizona, the home of Senator John McCain, the eventual Republican candidate for president, and former Arizona Governor and now DHS Secretary Janet Napolitano (D), promptly followed Colorado’s lead when it enacted even more stringent legislation in July 2007.19 Effective January 1, 2008, this law not only made it illegal to knowingly hire an undocumented worker, it also required all Arizona employers to utilize E-Verify or risk loss of their business license. 20 Colorado and Arizona initiated a growing trend of state legislation directed at the employment of undocumented workers. The June 2009 report of the National Council of State Legislatures found that forty-four states had passed 144 laws and 115 resolutions affecting foreign nationals and immigration. 21 While some see this as a positive step in controlling unauthorized employment, it has become a nightmare for employers who now must deal with a dizzying patchwork of federal and state laws and often conflicting compliance requirements. For larger healthcare organizations operating in multi-state arenas and varying jurisdictions, it simply ups the ante on ensuring compliance not only with federal immigration laws—but also with whatever laws now are imposed by individual states.
Immigration Risk Management: Best Practices
While the Obama Administration has shifted away from controversial worksite raids, it has made it clear that it intends to hold employers accountable for immigration law compliance. To emphasize this point, ICE issued more than 650 Notices of Inspection in July 2009 to employers in a wide range of industries suspected of Form I-9 and other serious worksite violations. 22 As the pressure for comprehensive immigration reform builds, the key to a more unified approach, especially in this difficult economy, remains strong worksite enforcement that penalizes employers who violate the law and employ undocumented workers. As a result, it is critically important for all employers in the healthcare industry to re-double their efforts and adopt policies that promote legal compliance and facilitate risk management. Healthcare employers looking for “best practices” may find assistance in the DHS’ ICE Mutual Agreement between Government and Employers (IMAGE) program. 23 Originally proposed in 2007, the IMAGE program has not attracted a large number of registrants, in large part because of its burdensome requirements. However, IMAGE does offer a set of “best hiring practices” that can serve as a model for developing policies and procedures that will better prevent potential worksite violations. 24 Not all best practices may be realistic for every employer. Nevertheless, the list provides a useful reference for organizations seeking to enhance their compliance efforts. It thus makes sense to review them in some detail.
E-Verify
ICE recommends that employers use the E-Verify program for all new hires. E-Verify allows registered users to better confirm the identity and employment authorization of new employees by running selected Form I-9 information through the DHS and SSA databases. Under federal law, it is a voluntary program, except for certain vendors who receive solicitations or contract awards under the Federal Acquisition Regulations. 25 Several states, however, require either employers or state contractors to use E-Verify.26 Based on recent pronouncements, it is clear that the Obama Administration is considering support for legislation that mandates that employers use E-Verify as a means of facilitating comprehensive immigration reform. Thus, employers in the healthcare industry should take a careful look at E-Verify so that they will be prepared to implement it in 2010 if necessary.
Form I-9 Training
ICE recommends that employers train all employees involved in the Form I-9 process and ensure that only trained employees participate in this process. The training should include the Form I-9 completion process, detection of fraudulent documents, and any other topics that relate to an employer’s particular circumstances.
ICE also recommends that employers provide annual updates on this training.
Form I-9 Audits
ICE recommends that employers conduct periodic Form I-9 audits and arrange for an annual audit by an external auditing firm or a specially trained employee not otherwise involved in the Form I-9 process.
Self-Reporting Procedure
ICE recommends that employers establish a self-reporting procedure for informing ICE of any violations, along with an employee tip line to report activity relating to the possible employment of undocumented workers.
No-Match Letter Process
ICE believes that there is a strong correlation between a no-match letter and the employment of an undocumented worker. For this reason, ICE recommends that all employers establish a procedure for responding to these letters.
Contractors/Subcontractors
ICE recommends that organizations establish a process for ensuring that all contractors and subcontractors adhere to procedures that protect against the employment of undocumented workers. This has become an important component of any compliance program since Wal-Mart was fined $11 million in 2007 for using cleaning contractors that employed undocumented workers. 27 It is also important to protect employers from unwitting violations of the L-1B and H-1B Reform Acts. 28
Unlawful Discrimination
IRCA prohibits unlawful discrimination in the Form I-9 process. ICE recommends that employers establish and maintain safeguards against unlawful discrimination when completing and maintaining Form I-9 documentation. This can consist of clear policies and procedures that define how the Form I-9 process must be handled, together with training on how to avoid not only unlawful discrimination, but also unfair immigration-related employment practices in the Form I-9 completion process.
The DHS IMAGE program is not for every organization. Indeed, we do not recommend it unless an organization has had a history of immigration-related compliance problems. DHS best practices do, however, provide useful recommendations for all organizations that are interested in controlling potential immigration violations as an element of their overall risk management program.
Risk managers should review these practices and others that might better fit their organizations, and use them as a resource for developing strong policies that ensure legal compliance, promote consistency, and prevent fraud in the temporary worker and permanent resident processes. 29 We advocate developing a comprehensive immigration policy that not only addresses recruitment, sponsorship, and termination of foreign national employees, but also recognizes that immigration compliance has become an important component of risk management. Implementing such a strong, comprehensive immigration policy will go a long way toward reducing the possibility of significant organizational liability.
Mr. Groban is a member of Epstein Becker & Green PC (EBG) and the chair of its Immigration Law Group (ILG). He has been selected as one of the Best Lawyers in America for Immigration by his peers, as a New York Super Lawyer for Immigration by the New York Super Lawyers-Metro Edition magazine 2009, and as a “Leader in the Immigration Field” by the editors of Chambers USA 2009. Mr. Groban has more than twenty-five years of experience advising clients on how to employ foreign nationals and develop appropriate risk management policies, as well as representing them in worksite enforcement and other immigration-related civil and criminal litigation. Prior to joining EBG, Mr. Groban served as a special assistant U.S. attorney in the United States Attorney’s Office for the Southern District of New York from 1976-81, and handled a variety of civil, criminal, immigration, and Nazi War Criminal cases at both the trial and appellate levels. Mr. Groban received a Special Achievement Award from the Executive Office of the United States Attorneys for his sustained superior performance in the trial and subsequent appeals of Bell v. Wolfish, 441 U.S. 520 (1979).
Mr. Chichoni chairs EBG’s South Region Immigration Practice and practices U.S. and global immigration law. He has represented a vast number of corporate and individual clients throughout his legal career, ranging from premier U.S. healthcare organizations to Fortune 100 and Fortune 500 companies. He currently serves as immigration counsel to several major healthcare organizations including two of the largest children’s hospitals in the United States. He also regularly serves as lead counsel for immigration and employment verification issues during ICE audits, large acquisitions, mergers, and corporate reorganizations. Mr. Chichoni is a frequent author, legal presenter, and lecturer.
Mr. Strasser is a senior counsel in the ILG at EBG and practices out of the firm’s New York office. Mr. Strasser advises clients on complicated issues regarding nonimmigrant work visas and permanent resident applications, obtaining visas at foreign consulates and securing work permits for employment outside the United States. He counsels clients on many types of compliance matters, such as Form I-9 documentation, Labor Condition Application requirements, and Export Control Regulations (e.g., BIS, ITAR, OFAC). Mr. Strasser has served as a member of the Immigration and International Law Committees of the Association of the Bar of the City of New York and currently serves as the Acting President of the Central Jersey Shore Chapter of the Federal Bar Association. Mr. Strasser served as a law clerk for the U.S. Attorney’s Office for the Eastern District of New York, where he worked in the General Crimes Unit and contributed research to Dividing Lines: The Politics of Immigration Control in America by Professor Daniel Tichenor of Rutgers University. He has lectured at seminars in New Jersey, New York, and Puerto Rico on the use of technology in immigration law.
1 Bureau of Labor Statistics, see www.bls.gov/oco/cg/cgs035.htm.
2 The Form I-9 is the form that employers must use to verify the identity and authorization to work of all new employees. Employers who fail to complete the Form I-9 properly are subject to civil and criminal penalties. 8 U.S.C. § 1324a.
3 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) (codified at 8 U.S.C.
§ 1324a).
4 See www.uscis.gov/propub/ProPubVAP.jsp?dockey=2b289cf41dd6b70a61a0 78a9fbfbc379. In addition to the Form I-9 requirement, IRCA also increased protections for workers by prohibiting discrimination on the basis of an employee’s or prospective employee’s citizenship or national origin.
5 The DHS now includes United States Citizenship and Immigration Services (USCIS), United States Customs and Border Protection (CBP), and United States Immigration and Customs Enforcement (ICE). The actions of these three agencies were previously administered by the Immigration and Naturalization Service, formerly an arm of the United States Department of Justice.
6 In December 2006, for example, ICE agents raided the operations of Swift & Co. in six states, resulting in the arrest of 1,297 illegal workers. No criminal charges or civil penalties were ever levied against Swift & Co. In 2008, a union official and human resources employee of Swift & Co. were convicted of harboring illegal aliens. See www.ice.gov/pi/nr/0808/080808desmoines.htm.
7 The H-1B is a nonimmigrant (temporary) visa classification that allows employers to hire foreign nationals in professional specialty occupations. A September 2008 study by the USCIS found that approximately 25% of the cases reviewed contained an error or material misrepresentation. See USCIS, H-1B Benefit Fraud & Compliance Assessment, Sept. 2008, available at www.uscis.gov/files/nativedocuments/H-1B_BFCA_20sep08.pdf. As a result, the USCIS has escalated its investigations of employers filing H-1B petitions.
8 Employers who file an H-1B petition so that they can hire a foreign national employee must maintain a Public Access File, which contains pertinent documents from the H-1B process for public inspection on twenty-four hours notice. See 8 U.S.C. § 1182(n)((1).
9 Testimony of Secretary Napolitano before the Senate Judiciary Committee, “Oversight of the Department of Homeland Security,” May 6, 2009, available at www.dhs.gov/ynews/testimony/testimony_1241706742872.shtm.
10 The current Form I-9 has a revision date of August 7, 2009, and is available at www.uscis.gov/i-9.
11 Discrimination claims under IRCA can take many forms. They can be based on the fact that the employer implements the Form I-9 process differently for different employees. They can also result when an employer asks an employee to produce specific documents, or more or different documents, than IRCA allows.
12 This policy should also identify applicants who are “protected” under IRCA and who thus cannot be refused employment on the ground that their employment authorization is temporary, such as asylees and refugees. See 8 U.S.C. § 1324a. Acceptable pre-employment questions include: “Are you authorized to work in the United states without restriction?” and “Do you now or will you in the future require immigration sponsorship?”
13 No-07-1125, 2008 WL 5077720 (10th Cir. Dec. 3, 2008).
14 This is not the position taken by the SSA. It issues no-match letters so that it can properly credit Social Security taxes to the proper employee’s account. At present, the SSA maintains a suspense fund with more than $300 billion in 17 unaccounted tax payments. It costs the SSA to administer this suspense fund and deprives the actual employee of rightful tax payments. The SSA began issuing no-match letters solely as an effort to resolve these problems. Indeed, the typical letter indicates that it is not and should not be construed to be evidence that the subject employees are not authorized to work.
15 The IRS can fine employers $50 for each W-2 Form filed with an incorrect SSN. The maximum an employer can be fined is $250,000 per year, or $100,000 per year for smaller employers with gross receipts of less than $5 million. If the IRS determines that these failures resulted from an employer’s intentional disregard of the information-reporting requirements, the penalty is $100 per return or 10% of the amount to be reported correctly, with no annual limit. IRS can also institute its own criminal investigation. See 26 C.F.R. § 31.
16 American Fed. of Labor v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007).
17 See 74 Fed. Reg. 51447 (Oct. 7, 2009).
18 Colorado House Bill 1343; Colorado Rev. Stat. Art. 8-17.5-101,102.
19 Arizona House Bill 2279, available at www.azleg.gov/legtext/48leg/1r/bills/ hb2779c.pdf.
20 The constitutionality of the Arizona legislation was upheld against a constitutional challenge by the Ninth Circuit in Chicanos Por la Causa, Inc. v. Napolitano, 544 F. 3d 976 (9th Cir. 2008), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009)(No. 09-115).
21 See www.ncsl.org/Default.aspx?TabID=756&tabs=951,119,851#951.
22 See www.ice.gov/pi/nr/0907/090701washington.htm.
23 As part of IMAGE, ICE, and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, anti-discrimination procedures, and use of the E-Verify employment eligibility verification program. Voluntary participation in IMAGE also gives ICE unprecedented access to an employer’s hiring and compliance procedures. See www.ice.gov/partners/opaimage/index.htm.
24 See www.ice.gov/partners/opaimage/index.htm.
25 Exec. Order No. 13,465, 73 Fed. Reg. 67651-01 (Nov. 14, 2008).
26 See Arizona House Bill 2279 and Colorado House Bill 1343.
27 Wal-Mart settled the action without charges being filed and was subject to an unpublished consent order. See www.foxnews.com/story/ 0,2933,150846,00.html.
28 The H-1B Reform Act prohibits certain contractors from placing H-1B workers on the client’s premises if this would displace an American worker. Consolidated Appropriations Act, 2005, Subtitle B, § 421-430, “H-1B Visa Reform Act of 2004.” Pub L. No. 108-156, 117 Stat. 1944 (Dec. 3, 2003). To demonstrate non-displacement, the contractor must first secure a statement from the client that no U.S. worker will be displaced by the H-1B assignment. Id. Many managers close with these contractors sign these statements without any idea of why they are requested or what they mean. The L-1B Reform Act prohibits contractors from placing L-1B workers at a client’s site unless they will use the specialized knowledge of their employer’s operations that was the basis for visa issuance. Consolidated Appropriations Act, 2005, Subtitle B, § 411-417, “L-1 Visa (Intracompany Transferee) Reform Act of 2004.” Id. In our experience, most employers do not have effective risk management policies in place to identify and prevent possible violations of these laws. See www.uscis.gov/ propub/ProPubVAP.jsp?dockey=2b289cf41dd6b70a61a078a9fbfbc379.
29 The DOL, USCIS, and Congress all suspect that there is extensive fraud in the H-1B and labor certification process, the latter of which being the first step in most permanent resident applications. U.S. Citizenship and Immigration Services, H-1B Fraud & Compliance Assessment, Sept. 2008, available at www.uscis.gov/ files/nativedocuments/H-1B_BFCA_20sep08.pdf. To help identify and address this unlawful activity, the DOL has recently developed and implemented the “ICERT” process that requires all labor condition applications (H-1B) and labor certification applications (permanent residence) to be filed online. ICERT allows the DOL to verify the existence of the employer and any variations in job descriptions that might be used improperly to enhance the prospects for approval. See http://icert.doleta.gov/. The USCIS recently started conducting unannounced on-site investigations of H-1B employers to confirm that the information supplied by the employer is accurate. Violators can be fined, debarred from the H-1B and labor certification programs, or prosecuted criminally for knowing and willful violations. These additional enforcement developments also counsel in favor of developing strong risk management policies in the immigration area.
Copyright 2010 American Health Lawyers Association, Washington, DC.
Reprint permission granted.
Further reprint requests should be directed to
American Health Lawyers Association
1025 Connecticut Avenue, NW, Suite 600
Washington, DC 20036
(202) 833-1100
For more information on Health Lawyers content, visit: http://www.healthlawyers.org.
On October 6, 2009, the Department of Homeland Security (DHS) announced that it will issue a final rule, to be published in the Federal Register on October 7, 2009, rescinding the embattled “No-Match” regulation. As we have previously reported, DHS is of the opinion that the receipt of a “No-Match” letter provided constructive knowledge to an employer that an employee may not be authorized to work. This rule would have created a “safe-harbor” procedure for employers to respond to “No-Match” letters, thus clearing employers from any knowing hire liability for that worker. 
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.
he 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.
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.”
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.
A decision by the Ninth U.S. Circuit Court of Appeals in San Francisco ordered this past Monday the reinstatement of 33 janitors in Los Angeles who were fired because their Social Security numbers did not match the government’s database. The janitors worked for Aramark Facility Services (“Aramark”) at the Staples Center in Los Angeles. After receiving “no-match” letters in 2003 stating that 48 employees’ Social Security numbers did not match the federal database, Aramark gave the employees three (3) days to clear up the problem. A number of them were able to fix their problems, but 33 could not and were fired. 
Aramark gave its employees to return with further documents and the arbitrator’s finding that Aramark had no “convincing information” of immigration violations, the employees’ failure to meet the deadline simply is not probative enough of their immigration status to indicate that public policy would be violated if they were reinstated and given back pay. Therefore, the district court erred and the award must be confirmed." (Aramark v. SEIU, June 16, 2008.) 
Today’s issue of the San Francisco Chronicle states that the “decision by the Ninth U.S. Circuit Court of Appeals did not address the legality of the administration’s so-called no-match rule, which a federal judge [Charles Breyer] blocked in October. That rule would threaten employers with civil fines and criminal prosecution unless they fired workers who failed to clear up discrepancies between their Social Security numbers and government records. But in ordering the Los Angeles janitors rehired with back pay, the court said employees can’t be fired merely because the Social Security number they submit differs from the number in the government’s files - a major issue in lawsuits over t he administration’s plan." 
the decision. In the decision Judge Holcomb Hall noted that Aramark’s three-day time limit given to the employees to resolve their no-match problems was much shorter than the timetable provided by the Bush administration’s proposal, which would give an employer 93 days to obtain a matching Social Security number from an employee before facing penalties for knowingly employing an illegal immigrant. This case could certainly have an impact in our state. 