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Councils Propose Expansion of Flawed E-Verify Program
The Civilian Agency Acquisition Council and the Defense Acquisitions Regulations Council have proposed a rule that would make E-Verify mandatory for approximately 200,000 public and private federal government contractors and their 4 million employees. Final comments on the rule were due on August 11. Employers, labor unions, privacy experts, and immigrant advocates submitted comments expressing concerns about the impact of E-Verify on American workers.
E-Verify is a small, voluntary electronic employment authorization program that used to be called the Basic Pilot/Employment Eligibility Verification program. It is designed to give employers a fast, easy way to check a person's immigration status. Approximately 70,000 employers nationwide use E-Verify, which is now run by the Department of Homeland Security (DHS) in collaboration with the Social Security Administration (SSA. Congress has introduced several bills to expand E-Verify and make it mandatory for all employers. Several states, including Arizona, Georgia, Mississippi and Oklahoma, already require all employers to use E-Verify.
Employers, unions, immigrant advocates and privacy specialists have warned against the expansion of the program until significant improvements are made, noting that the mandatory system would pose problems for both employers and U.S. workers. Studies on the program and evidence provided by those who have used it indicate that the current program is flawed, ineffective, and could potentially cost thousands of U.S. citizens and legal residents their jobs due to database errors. Federal rulemaking requires the government to review the comments on the proposed rule before an expansion of E-Verify is considered. |
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Debarment for Immigration-Related Violations
"You are invited to the party, but you can't dance."
The U.S. Immigration and Customs Enforcement (ICE) issued a news release on September 12 announcing that seven companies were notified of potential debarment for unlawful employment practices. Debarment in this context means an exclusion from government contracting and subcontracting. As an employer, should this concern you? The answer depends largely on whether you engage in or anticipate being involved with federal government contracts.
If you are involved with federal contracts and an enforcement action by ICE related to immigration employment issues is sustained against your organization, your current or future contracts may be in peril. In addition, employers should be mindful of numerous state laws that mirror the federal debarment provisions. There are no federal debarment issues unless the employer engages in federal contracts. The employer, however, may have state contracts in a jurisdiction that has a provision for state debarment or license revocation actions based on a finding by federal authorities that the employer has engaged in the employment of unauthorized aliens. The legal exposure to the employer in this environment is significant if there are federal or state contractual agreements. This exposure is even more problematic in communities that have entered into 287(g) agreements wherein local and state enforcement officials are being trained by ICE in the enforcement of immigration statutes under a Memorandum of Understanding (MOU). The exchange of information related to undocumented status, illegal activity and unauthorized employment is enhanced under these coordinated relationships.
In the federal context, a contractor (individual or legal entity) can be placed in debarment proceedings after having engaged in certain prohibited activities. An Immigration and Customs, Suspension and Debarment Official (SDO) determines the length of debarment. The length of debarment is determined by the seriousness of the cause(s) and whether the violation was civil or criminal in nature. In the immigration context, debarment proceedings relate to convictions for hiring, continuing to employ unauthorized workers, or violations related to a pattern and practice of employing unauthorized workers. The issuance of a final order for a civil fine relating to unlawful hiring or continuing to employ unauthorized workers can also be the basis for debarment.
Debarment proceedings are initiated based on a "Notice of Proposal to Debar" being served on the contractor. The recipient has 30 days to respond to the notice, in writing, in person or through a representative should they desire to contest the action. If an employer is debarred, the contractor's name and information is placed into the Excluded Parties List System (EPLS). This system is an electronic, web-based system, maintained by the General Services Administration (GSA) that contains information on debarred contractors, suspended parties and those proposed for debarment.
Employers that do not engage in the procurement of federal contracts may falsely feel insulated from significant business ramifications from an investigation related to immigration violations by federal authorities. This is a perilous position to take, especially in states that have enacted aggressive statutes relating to the curtailment of unauthorized employment. As an example, in a published opinion, the United States Court of Appeals for the Ninth Circuit affirmed the validity of the Legal Arizona Workers Act. This act targets the employer who hires illegal aliens and sanctions the offending employer through a process of revocation of the state license to do business in Arizona. This not only curtails the employer from engaging in a contractual relationship with the federal or state government. It also prevents the employer fom engaging in any business if certain immigration-related offenses are sustained. The Ninth Circuit decision has been watched closely by other state governments that are interested in curtailing illegal immigration through employer sanctions.
The pressure on employers to maintain a legal workforce will only increase in these difficult political and economic times. To minimize adverse exposure, the astute employer should continue to be educated in this critical area and maintain high standards in its employment practices. You are invited to enter federal and state contracts, but you can't dance around the debarment rules.
The information in this newsletter is intended to be general and does not constitute legal advice for any individual case or situation.
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ICE Arrests Two Alleged Agriprocessors Human Resources Employees
ICE special agents arrested two alleged human resources employees at Agriprocessors Inc. in Postville, Iowa on September 9. Laura Althouse, 38, of Postville, Iowa, was charged with aiding and abetting document fraud, aiding and abetting aggravated identity theft, and conspiring to harbor illegal aliens. Karina Freund, 29, of Fayette, Iowa, was charged with aiding and abetting the harboring of illegal aliens.
If convicted of all charges, Althouse faces a mandatory minimum sentence of two years in prison and a possible maximum sentence of 22 years in prison, a $750,000 fine, special assessments of $300, and seven years of supervised release following any prison term. Freund faces a possible maximum sentence of five years in prison, a $250,000 fine, a special assessment of $100, and three years of supervised release following any imprisonment.
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