E-VERIFY / I-9 UPDATE
On January 29, 2009, USCIS announced that it has delayed the implementation of the final rule requiring federal contractors and subcontractors to begin using USCIS’ E-Verify system until May 21, 2009.
By way of background, on June 6, 2008, President Bush amended Executive Order 12989 directing all federal departments and agencies to require certain contractors to use an electronic employment eligibility verification system designated by the Department of Homeland Security (DHS). On June 9, the DHS designated E-Verify as the verification system that federal contractors must use. Information on E-Verify can be found in our July 2008 article, E-Verify: Have You Signed Up For It Yet? Should You?
A final rule, published in the Federal Register on November 14, 2008, directs all federal agencies to require that certain federal contractors and subcontractors begin using E-Verify to verify employment eligibility of their new hires beginning January 15, 2009. However, after the US Chamber of Commerce and a number of other business organizations filed a lawsuit in federal court challenging the regulation, the Bush Administration delayed the effective date of E-Verify for federal contractors until February 20, 2009, and the Obama Administration recently postponed the requirement a second time until May 21, 2009.
As it stands now, federal contracts awarded and solicitations issued after May 21, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.
In addition to the mandatory requirement for all federal contractors to use E-Verify, 12 states have passed legislations requiring employers to use E-Verify (Arizona, Colorado, Georgia, Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Utah, and the City of Mission Viejo, California), while the State of Illinois prohibits the use of E-Verify.
On January 30, 2009, USCIS announced it has delayed until April 3, 2009, the implementation of an interim final rule entitled "Documents Acceptable for Employment Eligibility Verification" published in the Federal Register on Dec. 17, 2008.
Employers are required to complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9.
The interim rule has been criticized for failure to address documentation of employment authorization for aliens who are authorized to work, but who present special circumstances, for whom DHS has provided no guidance on how to complete the I-9 form or how to record an extension of work authorization. For example, Temporary Protected Status aliens with automatic grants of renewed work authorization; H-1B workers who port to a different H-1B employer; and certain non-immigrant workers who receive an automatic grant of continued work authorization for 240 days pending an extension request.
As the crackdown on employers of illegal immigration grows more intense with outrageous ICE raids at worksites nationwide and the looming requirement of E-Verify at federal and state level, employers are considering the benefits of switching from paper to digital I-9 to better manage their I-9 compliance.