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DHS Proposes New Regulation Rescinding No-Match Rule
The Department of Homeland Security (DHS) is seeking to rescind the no-match rule, which would have required the Social Security Administration (SSA) to issue a no-match letter to employers when an employee's name or Social Security number from the W-2 does not match SSA records, as well as a separate letter from DHS explaining how employers could resolve such discrepancies through safe harbor procedures. The rule was blocked by a federal district court in October 2007, when the American Civil Liberties Union, American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and National Immigration Law Center (NILC) filed a lawsuit against the DHS, charging that enforcement of the rule would place authorized workers at risk of losing their jobs and would cause discrimination against workers who look or sound "foreign." The rule never took effect because of the lawsuit.
Congressional Republicans disagree with the DHS's decision. "No-match letters help employers who want to follow the law to identify employees that may be working in the U.S. illegally," said House Judiciary Committee ranking Republican Lamar Smith of Texas. "There are currently an estimated seven million illegal immigrants working in the U.S. Meanwhile, there are 12.7 million Americans looking for jobs. Citizen and legal immigrant workers should not have to compete with illegal immigrants for scarce jobs. By repealing the no-match rule, the administration is putting illegal immigrants before the best interests of the American people."
DHS first announced its plan to repeal the no-match rule in July, noting that the Obama Administration favors the E-Verify employee-checking system.
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District Court Rules in Favor of Mandatory E-Verify for Federal Contractors and Subcontractors; New Regulation Begins September 8
On August 25, the U.S. District Court for the Southern District of Maryland granted the defendants' motion for summary judgment in Chamber of Commerce v. Napolitano, ruling in favor of an executive order requiring all federal contractors to use E-Verify to verify the employment eligibility of their employees. When the new rule takes effect on September 8, all federal contractors with contracts of more than $100,000, regardless of size, will be required to use E-Verify. Subcontractors must also follow the rule if their portion of the contract is more than $3,000. Companies awarded a contract with the E-Verify clause after September 8 must enroll in E-Verify within 30 days of the contract date.
Exec. Order No. 13,465, signed by former President George W. Bush on June 6, 2008, states as follows: Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.
In June 2008, former Secretary of Department of Homeland Security (DHS) Michael Chertoff designated E-Verify as the electronic employment-eligibility verification system to be used by federal contractors. A few days later, the Secretary of Defense, the Administrator of the General Services Administration, and the Administrator of the National Aeronautics and Space Administration (the Council) published a notice of proposed rulemaking that sought to amend the Federal Acquisition Regulation (FAR) to require that certain contracts include a clause requiring that contractors and certain subcontractors use E-Verify to verify the employment eligibility of their newly hired employees as well as all employees directly involved in the performance of work in the U.S. under those contracts.
During the notice and comment period, opponents challenged the Council's power to implement the proposed rule, stating that it violated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and that the Council did not consider the costs that businesses would face if the proposed rule became final.
On November 14, 2008, the Council published a final rule amending the FAR by adding a clause to federal contracts requiring government contractors and subcontractors to use E-Verify to verify that all their new hires and all employees (existing and new) directly performing work under federal contracts are authorized to work in the U.S.
On December 23, 2008, the plaintiffs, including Chamber of Commerce of the United States of America, the Associated Builders and Contractors, Inc., and the Society for Human Resource Management, filed the lawsuit arguing, among other things, that (1) the Secretary's designation of E-Verify violates the IIRIRA, (2) Exec. Order No. 13,465 and the Council's final rule violate the IIRIRA, (3) the reverification of existing employees requirement exceeds the statutory authority for E-Verify, and (4) the final rule violates the Regulatory Flexibility Act. The district court rejected all these claims.
U.S. Chamber of Commerce official Robin Conrad expressed disappointment over the court's ruling. "Our concern is the practical impact on employers . . . employers will be required to reverify existing employees who work on federal contracts, which has the potential to impact hundreds of thousands of workers."
Rep. Lamar Smith (R-Texas) supported the court's decision. "There are more than 12 million citizens and legal immigrants unemployed, and even higher-than-average unemployment rates among blacks and U.S.-born Hispanics. It would be wrong to allow jobs that should go to them to go to illegal immigrants instead. I am hopeful that the Chamber will choose not to appeal this decision. The Chamber should stand up for American workers and encourage all its member businesses to enroll in E-Verify."
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USCIS Expands Worksite Visits to Detect and Prevent H-1B and L-1 Fraud
As part of its effort to detect and prevent H-1B and L-1 fraud, USCIS has expanded its Administrative Site Visit and Verification Program by conducting random, "surprise" worksite visits to companies that sponsor H-1B and L-1 Visa holders. The overall purpose of the visits is to verify whether the foreign national employee is working at the company and performing the work as outlined in the visa petition.
Unlike the U.S. Department of Labor, which has the statutory authority to investigate employer compliance with visa requirements, USCIS has no regulatory or statutory authority to enter employers' worksites. USCIS officials have confirmed that complying with the investigation is voluntary. Previously, only religious organizations were subject to mandatory inspections and reviews. Currently, however, any non-immigrant petition might be subject to a workplace audit after approval and prior to adjudication.
According to the American Immigration Lawyers Association (AILA), USCIS has hired private contractors to conduct the worksite investigations, which involves an interview with the employer and possibly the employee. The investigators work to confirm the identities of the employer and employee to verify that both have complied with the visa's terms and conditions.
The worksite visits are normally conducted without advance notice. In general, investigators will seek to confirm: (1) whether the company is a real, operating business entity and (2) whether the employee being sponsored is a "legitimate" employee. They focus on two types of fraud: (1) a foreign worker who falsifies a petition and claims to work for a company that he does not work for and/or (2) a company that falsifies a petition. If investigators uncover any questionable activity, they are to turn the results of their investigation over to DHS.
During the worksite visit, investigators will meet with the company's human resources representative or manager to confirm the employee's date of hire, title, job description, work location, work hours, and salary. They might ask basic questions about the company, including its products and services, number of employees, work hours and office locations. In addition, investigators usually meet with the employee in question to discuss his job duties, work hours, salary and other issues related to his position at the company. They could also ask for a tour of the office, take photos of the office to prove it exists, or request payroll documentation such as W-2s or pay stubs for the employee.
There is no need to fear USCIS worksite visits if fraud has not been committed in the petition. Employers are not required to meet disruptive or unreasonable requests for access to company employees or company property, but they are advised to prepare for potential visits. This includes identifying who will provide the records and what documents the company is willing to share with investigators; having a complete visa petition packet that shows the company is complying with the visa requirements; maintaining proper payroll records; and ensuring visa petitions reflect current and accurate information. Employers should consult with counsel to develop an action plan for responding to USCIS worksite visits. | |
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