Enforcement Advisor

Your Reliable Source of Worksite Enforcement & Compliance News
Volume II, Issue 2 February 2009
In This Issue
Delay in New I-9 Implementation
Obama Administration Expected To Shift Focus
Mandatory E-Verify Use by Federal Contractors Delayed Again
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 Delay in New I-9 Implementation; Comment Period Extended
 
flag and statue of liberty 
 
The effective date of the new I-9 form and the interim final rule, "Documents Acceptable for Employment Eligibility Verification," has been delayed for 60 days, until April 3, 2009. The change was initially scheduled to take effect on February 2. The U.S. Citizenship and Immigration Services (USCIS) is extending the effective date to allow further consideration of the new I-9 rule.
 

USCIS is also extending the comment period on the new I-9 form for 30 days until March 4, 2009. You may submit your written comments, identified by DHS Docket No. USCIS- 2008-0001, on or before the deadline in any of the following ways:
 

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
 

2. Mail: Chief, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. To ensure proper handling, please reference DHS Docket No. USCIS-2008- 0001 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.
 
 
3. Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. Contact Telephone Number is (202) 272-8377.

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Obama Administration Expected To Shift Focus From Undocumented Workers To Unscrupulous Employers In Worksite Enforcement Raids
 
The new administration under President Barack Obama is likely to bring changes to workplace enforcement rules and a shift in emphasis from targeting undocumented workers to pursuing abusive employers who profit from their labor. Under President George Bush, the Immigration and Customs Enforcement (ICE) arrested 40,000 people in 2008 and 36,000 in 2007 through worksite raids and investigations targeting immigrant fugitives. The number of people arrested in worksite raids alone rose to 6,287 in 2008. Immigrant rights groups claim that the Bush policies punished undocumented workers with severe penalties such as deportation, while employers and business owners were spared despite breaking employment procedures and immigration laws. President Obama's appointment of former Arizona Governor Janet Napolitano as Secretary of Homeland Security signal that the new administration will focus on what Secretary Napolitano calls "unscrupulous employers" in worksite raids and investigations.
 
The new administration is expected to conduct fewer workplace raids for unauthorized employees. The President gave a hint of this new policy as far back as 2007 when he stated during an interview with the Des Moines Register, "I'm not particularly impressed with raids on plants that grab a handful of undocumented workers and send them home, leaving the company in a position where it can just hire the next batch."  While Obama has condemned the human toll of the raids, he has warned that he would not tolerate employers' use of undocumented immigrants for profit. Therefore, his administration is not expected to halt worksite raids altogether. Secretary Napolitano has emphasized that the new administration will review worksite enforcement actions to make sure the focus is on unscrupulous employers and criminal punishment against employers who unlawfully hire undocumented workers.
 
In addition, other employer-oriented enforcement actions are expected to continue.  For example, a proposed rule will require approximately 200,000 public and private federal government contractors and their 4 million employees to use E-Verify, an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration to confirm the work eligibility of new hires. Most federal contractors already use E-Verify and several states, including Arizona, Georgia, Mississippi and Oklahoma, require all employers to use it. Business groups argue that the system is onerous and civil liberties groups say it is error-prone and will penalize legal workers. Obama has said that employers need to be more involved in verifying the legal status of their workers. He favors making E-Verify mandatory for all employers but wants it to include higher accuracy and privacy standards. 
 
Although some experts predict a drop in worksite raids under the Obama administration, there is no clear indication this will be the case.  Moreover, according to Secretary Napolitano, worksite raids will focus more on targeting unscrupulous employers rather than undocumented workers. Consequently, employers will be under greater pressure to streamline their hiring policies and audit procedures to avoid civil fines and criminal punishment for violating the law.
  
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Mandatory E-Verify Use by Federal Contractors Delayed Again
 
Implementation of the federal acquisition regulation (FAR) policy requiring federal contractors to use the E-Verify program has been delayed again to May 21, 2009, "in order to permit the new Administration [of President Barack Obama] an adequate opportunity to review the rule." E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
 
Implementation of the FAR policy had previously been delayed to February 20, 2009, when the parties to a lawsuit challenging the rule agreed to the suspension to allow more time to make arguments to the court. A coalition of business groups led by the U.S. Chamber of Commerce filed the complaint to stop the government's plan to make E-Verify mandatory for federal contractors and subcontractors. Their main argument is that Section 402(a) of the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (IIRIRA) expressly prohibits requiring "any person or other entity to participate in a pilot program."
 
On January 20, 2009, Rahm Emanuel, President Barrack Obama's Chief of Staff, issued a memorandum to all executive department heads and agencies governing issuance and possible suspension of regulation, stating that agencies should "[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect."
 
Due to the delay, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the FAR rule would mandate. The rule requires most federal contractors and subcontractors to reverify their workforce and imposes vicarious liability for subcontractors.