TO E-VERIFY OR NOT TO E-VERIFY

744 Broad Street, 16th Floor, Newark, NJ 07102 Ph. (973) 735-2716 Fax. (973) 735-2717 E-Mail. hasatrian@strasserasatrian.com TO E-VERIFY OR NOT TO E-VERIFY By: Harry Asatrian, Esq. Partner Strasser Asatrian, LLC Ainsley Harrell, Esq. Of Counsel Strasser Asatrian, LLC Published by Lexis Nexis Emerging Issues http://law.lexisnexis.com/practiceareas/emerging-issues 2009 Strasser Asatrian, LLC

TO E-VERIFY OR NOT TO E-VERIFY By Harry Asatrian and Ainsley Harrell 1 E-Verify is an online system operated by the Social Security Administration ( SSA ) and the Department of Homeland Security ( DHS ) permitting employers to electronically verify that newly hired employees are authorized to work in the United States by comparing information from the employee s Form I-9 against SSA and DHS databases. 2 Enrollment in E- Verify is free and, for most employers, voluntary. 3 As of September 1, 2009, more than 145,000 employers at nearly 550,000 worksites were participating in the E-Verify program. 4 This article discusses the development and requirements of the E-Verify program. It also outlines some of the program s advantages and disadvantages for U.S. employers contemplating whether to voluntarily participate in the E-Verify program. I. The Development of E-Verify The Immigration Reform and Control Act ( IRCA ) of 1986 5 amended the Immigration and Nationality Act ( INA ), 6 making it unlawful for an employer to hire or continue to employ a worker with the knowledge that the alien is not authorized to work in the United States. 7 IRCA also provided for an employment verification system implemented as a Form I-9 8 requiring new employees to present documents establishing their identity and employment authorization. 9 In 1992, the government launched the Telephone Verification System ( TVS ), a predecessor to E-Verify that permitted employers to make supplementary employment verification for a new hire. 10 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( IIRIRA ) 11 then established three more advanced pilot programs, including Basic Pilot. 12 The web-based version of Basic Pilot (now known as E-Verify) is maintained as the employment eligibility verification system operated by the government. 13

On October 1, 2009, President Obama resuscitated E-Verify by extending it for 30 days. 14 This provided a short-term stopgap funding for the federal government to continue this program, which is slated to be further extended in the coming weeks. On October 7, 2009, the Senate and House Appropriations Committees issued a conference summary on the FY10 Homeland Security Appropriations bill (H.R. 2892), which includes a three year extension of the E-Verify program and which now heads for a final vote in the coming weeks. II. An Overview of Enrollment and the E-Verify Process A. Enrolling in E-Verify To enroll in the E-Verify program, an employer must register online and complete a Memorandum of Understanding ( MOU ) detailing the responsibilities of SSA, DHS and the employer. 15 The MOU governs program training requirements, procedure, and privacy. 16 B. Using E-Verify United States Citizenship and Immigration Services ( USCIS ), an agency within DHS, provides information online regarding the use of E-Verify, including a User Manual, 17 a Quick Reference Guide, 18 and a How Do I? guide. 19 Additionally, the MOU obligates SSA and DHS to assist employers with operational problems. 20 Below is a brief summary of the user process. 1. Completion of a Form I-9 Regardless of whether an employer is enrolled in E-Verify, it must ensure that new employees complete a Form I-9 and provide appropriate documentation in support of the employee s identity and work authorization status. While employers are generally prohibited from specifying which documents an employee should provide, E-Verify employers must ensure that any List B identity-establishing document contains a photograph. The presentation of a 21

Form I-551 ( Lawful Permanent Resident Card ) or I-766 ( Employment Authorization Card ) automatically activates the Photo Screening Tool ( PST ), which allows employers to compare the photograph on the supporting document with images stored in DHS databases. Note that E-Verify should only be used after new hires have completed a Form I-9; employers are not permitted to pre-screen job applicants. 2. Initial Verification Inquiry By the third business day after hiring an employee, an employer must enter information from the employee s Form I-9 into the E-Verify system, which electronically transmits the information to the government. The SSA database is scanned first. If the data matches, information regarding a non-u.s. citizen will then be run through the USCIS database. Once an employer begins using the E-Verify program, it must process all new employees through the system. Employers shall not use E-Verify to confirm the eligibility of current employees. 3. Results of Initial Verification Inquiry In the majority of cases, the employer will receive an employment authorized response immediately. However, if the employee s information cannot be verified, the employer may receive a response of either SSA tentative nonconfirmation (Social Security information could not be verified), or DHS verification in process (a non-citizen s information matches the Social Security database but not DHS s electronic records). In the latter situation, the case is automatically forwarded to an Immigration Status Verifier ( ISV ) for further investigation. When an employer receives a tentative nonconfirmation ( TNC ) response, it must notify the employee of the result as soon as possible and inform him or her of the right to contest the result. If the employee opts to contest, he or she must visit an SSA office or contact DHS by phone (depending on the source of the inconsistency) within eight government workdays of the 22

referral. Because a TNC is not an indication that an employee is unauthorized, the employer may not take adverse employment action against the employee during this time. When an employee contacts the appropriate department within the allotted time and the discrepancy is resolved, the employer will be notified that employment is authorized or, in the case of an SSA referral, that the case has been forwarded to DHS for further processing. When the information still does not match, the employer will receive a final nonconfirmation response ( FNC ), at which point the employer may terminate employment. If the employee has expressed a desire to contest a TNC but does not contact the appropriate government department within the allotted time, E-Verify will issue an FNC or a no show response and the employee may then be terminated. When an employee does not wish to contest the result, the employer can terminate employment immediately. III. Considering Whether to Enroll in E-Verify A. Certain Employers Required to Enroll 1. Federal Contractors and Subcontractors On August 25, 2009, the U.S. District Court for the District of Maryland, Southern Division, rejected a challenge to the implementation of the Federal Acquisition Regulation ( FAR ) provision that makes E-Verify mandatory for Federal Contractors. 23 As a result, all solicitations and contracts issued after September 8, 2009 must include the clause set forth in FAR 52.222-54. 24 Exempted from this rule are solicitations and contracts where the contract is valued at less than $100,000, where the period of performance is less than 120 days, where the work will be performed entirely outside of the U.S., or for commercially available off-the-shelf items. 25 Any subcontracts over $3,000 for services or construction will require the same

clause. 26 Federal Contractors should note that their compliance with the MOU is a performance requirement under the terms of a contract or subcontract. 27 The required clause first obligates all Federal Contractors who are not yet enrolled in E- Verify at the time of a contract award to enroll in the program within 30 days. 28 Within 90 days of enrolling, Federal Contractors must begin to initiate verification of employment of eligibility of all new hires, regardless of whether the employees will be assigned to the federal contract, within three days of each hire. 29 Second, for each employee assigned to a federal contract, a Federal Contractor must initiate verifications within 90 days of enrolling or 30 days of the employee s assignment to a federal contract, whichever is later. 30 A Federal Contractor enrolled in E-Verify for 90 days or more at the time of the contract award must use E-Verify for all new hires within three business days of the hire, regardless of whether they will be working on the federal contract. 31 A Federal Contractor enrolled for 90 days or less at the time of the contract award must begin using E-Verify on all new hires within 90 days of enrollment, regardless of whether they will be working on the federal contract, within three business days of the hire. 32 All Federal Contractors already enrolled in E-Verify must also initiate verifications for each employee assigned to a federal contract, within 90 days after the date of the contract award or within 30 days after the assignment to the contract, whichever is later. 33 Once enrolled in E-Verify, Federal Contractors may verify the employment eligibility of all existing U.S. employees hired after November 6, 1986. 34 These verifications must be initiated within 180 days after the election or in accordance with DHS procedures. 35 Lastly, all federal contracting officers must modify, on a bilateral basis, existing indefinite-delivery/indefinite-quantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends beyond March 8,

2010, and the amount of work or number of orders expected under the remaining performance period is substantial. 36 2. Employers in Certain Cities and States In addition, some state and local governments have mandated the use of E-Verify for some or all employers within their respective jurisdictions. Not all states require the same level of mandatory participation; employers should check local and state laws in their jurisdictions. B. Advantages and Disadvantages of E-Verify 1. Assists Employers in Maintaining a Legal Workforce A main appeal of E-Verify is that an employer is better able to ensure that its workforce is legal. Employers should note, however, that identity theft remains an issue. 2. Raises Rebuttable Presumption That Employer Did Not Knowingly Hire Unauthorized Worker As discussed above, it is unlawful for an employer to hire or continue to employ an alien knowing that the employee is not authorized to work in the U.S. 37 But an employer who confirms the identity and employment eligibility of an employee in accordance with the terms of E-Verify benefits from a rebuttable presumption that it has not violated INA 274A(a)(1)(A). 38 Further, no employer participating in E-Verify can be held civilly or criminally liable under any law for actions taken in good faith reliance on information received through E-Verify. 39 Employers should note, however, that if they continue to employ a worker after receiving an FNC, they must notify DHS; each failure to notify may subject an employer to a civil money penalty. 40 Further, an employer who continues to employ a worker after receiving an FNC also subjects itself to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of INA 274A(a)(1)(A). 41 3. Usually Non-burdensome, But Problems May Be Costly

USCIS maintains that E-Verify is quick and non-burdensome to employers, 42 a claim largely substantiated by the evaluation of the web-based version of Basic Pilot presented by research firm Westat in 2007 ( Report ). 43 Currently, around 97% of queries are automatically confirmed as work authorized in twenty four hours or less; 44 however, the Report found that when a TNC was issued an average of 39.7 days elapsed between the hire and closure dates. 45 E-Verify is offered by the government cost-free, 46 but employers should nevertheless expect to incur certain costs when enrolling in and operating the program. The Report suggests that set-up costs tend to vary depending on several factors, including industry, size, and number of employer locations. 47 The Report also noted that not all costs associated with the use of E- Verify can be easily quantified and that further expenses may include additional recruitment, reassignment of employees and delayed production. 48 Finally, many of the problems with E-Verify stem from data inaccuracies, but the government is actively working to improve the reliability of its results. 49 One of the major issues highlighted in the Report was that at 10%, the erroneous TNC rates for foreign-born citizens were substantially higher than for U.S.-born citizens and non-citizens, 50 so as of May 2008, E-Verify was modified to include naturalization data. 51 USCIS and SSA also plan to initiate citizenship status records information sharing to help reduce the number of TNCs. 52 4. Operating Multiple Hiring Sites Costlier But Reduces Complications Where an employer maintains multiple hiring sites, the employer may elect to have one site verify all new hires or it may verify new hires at multiple sites. In the latter situation, each site must go through the registration process and sign an MOU, which can result in higher costs. 53 However, operating only one site can raise difficulties with the PST function, as an

employee may present a photo document at one site that must be checked against the DHS database using E-Verify at another site. 5. Extension of Optional Practical Training Time for F-1 Students with STEM Degrees Where Employer Participates in E-Verify In 2008, USCIS announced an interim final rule which provides that F-1 nonimmigrant students with science, technology, engineering, or mathematics ( STEM ) degrees may be afforded an additional 17 months of optional practical training ( OPT ) (for a total of 29 months) if their employers enroll or are enrolled in the E-Verify program. 54 Ordinarily, all F-1 nonimmigrant students who have been enrolled full-time for at least one academic year in a Student and Exchange Visitor Program-certified institution and have otherwise maintained status are eligible for 12 months of OPT, during which they may work for a U.S. employer in a job directly related to the student s main area of study. 55 During OPT, qualified F-1 students may apply for a change of status to H-1B (professional in a specialty occupation), but Congress has imposed a 65,000 cap on the number of grants of H-1B status in a fiscal year. 56 Competition for H-1B visas is intense: in 2007, the cap was reached on the first day for filing, with more than double the number of petitions needed to reach the annual cap received that day. 57 Because H-1B petitions may not be filed more than six months before the actual need of the beneficiary s services and the earliest date the employer can file in a fiscal year is April 1, the earliest employment start date is October 1. Often, the 12 months of OPT time plus the subsequent 60 day departure preparation period will expire before October 1 and therefore even those OPT students who are selected to receive H-1B visas are unable to secure their status before the expiration of their OPT time, and are forced to depart from the U.S. as a result. 58 The resulting cap gap can be a major inconvenience for both the employee and the employer, but

the interim final rule benefits employers and students with pending H-1B petitions by allowing such students to maintain their employment eligibility while they await their H-1B start dates. 59 6. Virtually Eliminates SSA No-Match Letters Enrollment in E-Verify, claims USCIS, virtually eliminates SSA mismatch letters and thus any corresponding uncertainty. 60 Employers should note, however, that on October 7, 2009, DHS rescinded a 2007 final rule entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter 61 and its 2008 supplemental proposed and final rules, 62 which deemed that an employer s ineffective response to a mismatch letter could support a finding that the employer had constructive knowledge of an employee s lack of work authorization. 63 DHS claims its decision to rescind its final rule is based on its intent to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, and other such programs. 64 reporting. 65 7. Improves Accuracy of Wage and Tax Reporting USCIS asserts that participation in E-Verify improves the accuracy of wage and tax 8. Information Collected by E-Verify May Be Used for I-9 Audits and Worksite Raids U.S. Immigration and Customs Enforcement ( ICE ) actively enforces the employer verification system through its worksite enforcement program, but instead of randomly targeting employers, ICE may use information collected through E-Verify to perform I-9 audits, initiate worksite enforcement raids, and investigate an employer for criminal prosecution. 66 9. MOU Requires Employers to Authorize Periodic Visits Employers should note that the MOU compels them to cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify. 67 Specifically, an E-Verify employer

authorizes DHS and SSA, upon reasonable notice, to review any Form I-9 or other employment records, and to interview it and its employees on the use of the program. 68 An employer must also respond to DHS requests for information regarding their participation in E-Verify. 69 --- The E-Verify system, and especially its mandatory use for certain employers, has been much debated from a policy standpoint. 70 Yet despite its imperfections, E-Verify is a viable tool for employers seeking to maintain a legal workforce. The decision of whether to enroll in E- Verify depends on various factors and the employer s judgment of how each will impact upon the unique features of its business. 1 Harry Asatrian is a Partner at Strasser Asatrian LLC, a law firm focused primarily in the area of Immigration and Nationality Law, located in Newark, New Jersey. Ainsley Harrell is Of Counsel to the firm based in Boston, Massachusetts. 2 USCIS E-Verify, www.uscis.gov/e-verify (last visited Sept. 24, 2009). 3 Id. 4 USCIS Federal Contractors Required to Use E-Verify Beginning Sept. 8, 2009, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=109cc691d0673 210VgnVCM100000082ca60aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD (last visited Sept. 24, 2009) (hereinafter Federal Contractors Required ). 5 Pub. L. No. 99-603, 100 Stat. 3359 (codified at 8 U.S.C. 1324a et seq.). 6 8 U.S.C. 1101 et seq. 7 INA 274A(a)(1)-(2), 8 U.S.C. 1324a(a)(1)-(2). 8 See 8 C.F.R. 274a.2(a)(2). 9 INA 274A(b). 10 69 Interpreter Releases 702 (June 8, 1992). 11 Pub. L. No. 104-208, 110 Stat. 3009. 12 The Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. 108-156, extended Basic Pilot through 2008 and announced the enhanced web-based version. 13 Authority for the E-Verify program is found in Title IV, Subtitle A, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, as amended (8 U.S.C. 1324a note). 14 Pub. L. No. 111-68. 15 USCIS Getting Started, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=6a0988e60a405 110VgnVCM1000004718190aRCRD&vgnextchannel=6a0988e60a405110VgnVCM1000004718190aRCRD (last visited Sept. 24, 2009). The MOU is available online at http://www.uscis.gov/files/nativedocuments/mou.pdf (last visited Sept. 24, 2009) (hereinafter MOU ). 16 MOU, supra note 14. 17 The User Manual is available online at http://www.uscis.gov/files/nativedocuments/e-verify-manual.pdf (last visited Sept. 24, 2009) (hereinafter User Manual ). 18 The Quick Reference Guide is available online at http://www.uscis.gov/files/nativedocuments/employer%20quick%20reference%20guide%202-04-09-ver2.pdf (last visited Sept. 24, 2009).

19 The How-Do-I? Guide is available online at http://www.uscis.gov/files/article/e4eng.pdf (last visited Sept. 24, 2009) (hereinafter How-Do-I? Guide ). 20 MOU, supra note 14; User Manual, supra note 16. 21 See also 8 C.F.R. 274a.2(a)(2). 22 Where an employee presents either of these documents, the employee must copy the document. USCIS E- Verify Program Highlights, http://www.uscis.gov/vgn-exttemplating/v/index.jsp?vgnextoid=a16988e60a405110vgnvcm1000004718190arcrd&vgnextchannel=a16988e6 0a405110VgnVCM1000004718190aRCRD (last visited Sept. 24, 2009) (hereinafter Program Highlights ). 23 Chamber of Commerce of the United States v. Napolitano, 2009 WL 2632761, D. Md. No. 08-civ-3444 (AW), Memorandum Opinion, Dk. No. 51 (Aug. 26, 2009)(denying plaintiff s motion for summary judgment and preliminary injunction; granting defendant s motion for summary judgment). Cf., Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d 856, 867 (9 th Cir. 2009)(holding that Congress could have, but did not, expressly forbid state laws from requiring E-Verify participation. ) 24 FAR 22.18 implements a rule based on Exec. Order No. 12,989. See also FAR, 73 Fed. Reg. 67,651 (Nov. 14, 2009); 74 Fed. Reg. 1,937 (Jan. 14, 2009) (delaying implementation until February 20, 2009); 74 Fed. Reg. 5,621 (Jan. 30, 2009) (delaying implementation until May 21, 2009); 74 Fed. Reg. 17,793 (Apr. 17, 2009) (delaying implementation until June 30, 2009); and 74 Fed. Reg. 26,981 (June 5, 2009) (delaying implementation until Sept. 8, 2009). 25 FAR 22.1803. Note that all fifty states, as well as the District of Colombia, Guam, Puerto Rico, and the U.S. Virgin Islands are all considered part of the U.S. for this purpose. 26 FAR 52.222-54(e). 27 FAR 52.222054(b)(5). A Supplemental Guide for Federal Contractors is available at http://www.uscis.gov/uscis/e- Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FIN AL.pdf (last visited Sept. 24, 2009). 28 FAR 52.222-54(b)(1)(i). 29 FAR 52.222-54(b)(1)(ii). Note that special rules apply to Federal Contractors that are institutions of higher education, State or local governments, governments of Federally-recognized Indian tribes, or sureties performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond. See FAR 22.1802; FAR 52.222-54(b)(3). 30 FAR 52.222-54(b)(1)(iii). 31 FAR 52.222-54(b)(2)(i)(A). 32 FAR 52.222-54(b)(2)(i)(B). 33 FAR 52.222-54(b)(2)(ii). 34 FAR 52.222-54(b)(4). 35 FAR 52.222-54(b)(4)(i)-(ii). 36 74 Fed. Reg. 26,981 (June 5, 2009). 37 INA 274A(a)(1)-(2). 38 INA 274A, note, Sec. 402(b). 39 INA 274A, note, Sec. 403(d). 40 73 Fed. Reg. 221 (Nov. 14, 2008). 41 Id. 42 USCIS Why E-Verify?, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e94888e60a405 110VgnVCM1000004718190aRCRD&vgnextchannel=e94888e60a405110VgnVCM1000004718190aRCRD (last visited Sept. 24, 2009) (hereinafter Why E-Verify? ). 43 Westat, Evaluations of the Web Basic Pilot Evaluation, USCIS, Sept. 2009, http://www.uscis.gov/files/article/webbasicpilotrprtsept2007.pdf (last visited Sept. 24, 2009), at 10 (hereinafter Westat Report ). 44 Federal Contractors Required, supra note 3. 45 Id. at E-4. 46 Why E-Verify?, supra note 42. 47 Id. at 104-106. 48 Id. at 106. 49 See e.g., 73 Fed. Reg. 221 (Nov. 14, 2008).

50 Westat Report, supra note 43 at 57. 51 USCIS maintains that the high rate occurred because many naturalized citizens have not updated their records with SSA. USCIS USCIS Announces Enhancements to E-Verify Program, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f55d1443719b9 110VgnVCM1000004718190aRCRD&vgnextchannel=a16988e60a405110VgnVCM1000004718190aRCRD (last visited Sept. 24, 2009) (hereinafter USCIS Announces Enhancements ). Note that a naturalized citizen who receives an SSA TNC may now either visit any SSA field office or call USCIS directly to resolve the mismatch. Id. 52 USCIS Announces Enhancements, supra note 54. 53 How-Do-I? Guide, supra note 18; Westat Report, supra note 43 at 104-106. 54 Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions, 73 Fed. Reg. 18,944 (Apr. 8, 2008). 55 8 C.F.R. 214.2(f)(10). 56 INA 214(g). 57 73 Fed. Reg. 18,944 (Apr. 8, 2008) (citing USCIS Update, http://www.uscis.gov/files/pressrelease/h1bfy08cap040307.pdf). 58 Id. 59 Program Highlights, supra note 21. 60 USCIS Why Should I Consider Participating in E-Verify?, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d25be0cbcf901 10VgnVCM1000000ecd190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD (last visited Sept. 24, 2009). 61 72 Fed. Reg. 45611 (Aug. 15, 2007). 62 73 Fed. Reg. 15944 (Mar. 26, 2008)(supplemental proposed rule), 73 Fed. Reg. 63843 (Oct. 28, 2008)(supplemental final rule). 63 72 Fed. Reg. 45611 (Aug. 15, 2007). This action comes after DHS suffered setbacks in its efforts to implement the rule, first in a U.S. District Court in California, see American Federation of Labor and Congress of Industrial Organizations. v. Napolitano, No. 07-4472 (N.D. Cal. filed Aug. 29, 2007)( the district court granted a temporary restraining order ( TRO ) enjoining defendants from implementing the new rule), and thereafter with the Ninth Circuit Court of Appeals decision in Aramark Facility Services v. SEIU, No. 06-56662, 2008 U.S. App. LEXIS 12704 (9th Cir. Jun. 16, 2008), which held that the SSA's No-Match letter and the employees failure to meet a short deadline to resolve the discrepancy did not put the employer on constructive notice that it was employing undocumented workers. 63 64 Safe Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission, 74 Fed. Reg. 51,447 (Oct. 7, 2009). 65 Id. 66 See Doris Meissner & Marc R. Rosenblum, The Next Generation of E-Verify Getting Employment Verification Right, Migration Policy, July 2009, http://www.migrationpolicy.org/pubs/verification_paper-071709.pdf; ICE Worksite Enforcement Fact Sheet, http://www.ice.gov/pi/news/factsheets/worksite.htm (last visited Sept. 24, 2009). 67 MOU, supra note 14. 68 Id. 69 Id. 70 See e.g. 73 Fed. Reg. 221 (Nov. 14, 2008).