To be sure, the government has stepped up immigration enforcement in the past several months.  According to government reports, Federal prosecution of immigration related crimes increased considerably during the first few months of the Obama Administration.  These reports show over 9,000 new immigration prosecutions in April 2009, which represents a 33% increase from one year ago.

 

A couple of weeks ago, DHS announced that it will be auditing I-9 forms of some 600+ employers as part of a nationwide crackdown on the employment of unauthorized workers. All employers must comply with applicable hiring/documentation regulations or face civil fines - and possible criminal prosecution.

We have previously reported to you about the Department of Homeland Security's E-Verify rule (for government contractors) and the Social Security "No-Match" rule introduced by the Bush Administration.  Since neither rule was implemented prior to President Bush leaving office, employers have been awaiting action by President Obama's Administration on the two regulations.  On July 8, 2009, DHS Secretary Janet Napolitano finally announced that the Administration shall be rescinding the Social Security "No-Match" rule, but still plans to implement the E-Verify Rule for government contractors.

As previously reported, implementation of the mandatory E-Verify rule for federal contractors was delayed for the fourth time, until September 8, 2009, to give the Obama Administration more time to review the rule before it took effect.  This regulation requires most federal contractors and subcontractors to use the government's E-Verify System.

 

E-Verify is the electronic employment verification system operated by U. S. Citizenship and Immigration Services, which verifies the employment eligibility of newly hired employees.  E-Verify compares information from an employee's Form I-9 against federal government databases to verify an individual's employment eligibility.  According to Secretary Napolitano, requiring federal contractors to use this system "will create a more reliable and legal workforce."

As part of its announcement regarding the Administration's support for the program, DHS addressed some of the criticisms of E-Verify, including the claim that the system is not designed to catch stolen or borrowed Social Security numbers, causing an unacceptable rate of incorrect non-matches.  DHS reports that it has been enhancing E-Verify to address the issue of errors, such as adding access to the naturalization database records to better verify naturalized citizens' status and incorporating Department of State passport data into the E-Verify system to reduce mismatches among foreign-born citizens.  Other improvements include adding new tools to help prevent fraud, misuse, and discrimination, as well as to increase privacy protection.

Despite the Administration's support for E-Verify, it is still uncertain whether the rule will become effective in September. Still pending is a federal lawsuit by the U.S. Chamber of Commerce that challenges the regulation and seeks to block its enforcement.  Until this lawsuit is resolved, it is unlikely that the DHS will be able to implement the E-Verify program.

 

For more details about mandatory E-Verify for federal contractors, please see the June 16, 2009 Compliance Matters. 6/16/09 CM

 

When we last reported about the "No-Match" rule in December 2007, we advised that a federal court had enjoined enforcement of the rule.  The proposed rule establishes procedures for employers to follow when they receive so-called "No-Match" letters from the Social Security Administration or a notice from DHS questioning work eligibility information provided by an employee.  To date, the rule has not become effective.

Rescinding the "No-Match" rule will be welcomed by many employers who had concerns about the rule's "safe harbor" provision.  The safe harbor provision would have required employers to follow strict time limits and take adverse action against those employees whose social security numbers and names do not match.  Those who didn't would face liability for knowingly employing unauthorized workers.

The day after DHS announced that it was rescinding the "No-Match" rule, however, the Senate passed the DHS appropriations bill which contained an amendment prohibiting DHS from using federal funds to rescind the rule.  Thus, like the E-Verify rule, the status of the "No-Match" rule remains uncertain.

Further information regarding the "No-Match" rule may be found in the December 2007 Compliance Matters. (12/07 CM)

 

 

There is no doubt that the Obama Administration is serious about workplace enforcement.  The time to verify compliance is before an enforcement action has been undertaken.  Your Firm contact is ready to assist you if you have any questions about this topic and/or general I-9 compliance.