Alert September 17, 2009

E-Verify Becomes Mandatory for Federal Contractors and Department of Homeland Security Proposes Rescission of No-Match Rule

E-Verify

The U.S. District Court for the District of Maryland recently upheld Executive Order 12989, requiring the use of E-Verify by federal contractors who are awarded a new contract on or after September 8, 2009. E-Verify is a web-based electronic employment verification system operated by the U.S. Citizenship and Immigration Services (“USCIS”) in partnership with the Social Security Administration (“SSA”). E-Verify does not replace the current I-9 process. Rather, it is a second step in the employee verification system.

Federal Contractors

For the purposes of E-Verify, an employer is considered to be a federal contractor if it has a contract with the United States, or any department or agency thereof, where the contract extends for a period of longer than 120 days and is valued at more than $100,000. The requirement also applies to subcontracts over $3,000 for services or construction that flow from the primary contracts.

Covered Employees

Federal contractors or subcontractors are required to verify the employment authorization of existing employees currently assigned to the federal contract(s) as well as all new hires, regardless of whether the new hire is assigned to work on the federal contract(s) (“Covered Employees”). Federal contractors also have the option of verifying all existing employees.

The E-Verify Process

Federal contractors and subcontractors have 30 days from the date of the contract to enroll in E-Verify and 90 days from the date of enrollment to initiate verification inquiries for Covered Employees. Going forward, employers have three business days from the start date of a new hire to initiate verification.

Once an employer has registered for E-Verify, the employer is required to enter certain information about Covered Employees, taken from the I-9 form. The E-Verify system then searches the SSA and U.S. Department of Homeland Security (“DHS”) databases to confirm the employee’s eligibility to work in the United States. The federal contractor will receive one of three responses: (i) Employment Authorized, (ii) Tentative Non-Confirmation (“TNC”), or (iii) DHS Verification in Process.

If the employee is authorized to work, the employer simply enters the confirmation number on the I-9 form and the process is complete. If the employer receives a “DHS Verification in Process” response, this means the verification is still in process and the employer will either receive an Employment Authorized or TNC notice within the next 24 hours.

If the employer receives a TNC notice, there is an information mismatch. The employer must notify the employee by reviewing the TNC notice with the employee. The TNC notice will include a statement advising the employee of his or her rights. The employee has eight business days to contest the mismatch with the appropriate agency (either SSA or DHS), during which time the employee should be permitted to continue working. If the employee contests the finding, the employer will receive one of three responses within 10 business days: (i) Employment Authorized; (ii) Final Non-Confirmation; or (iii) Review and Update Employee Data and Resubmit. If the employee chooses not to contest the TNC notice, this is considered to be a Final Non-Confirmation.

Once the employer receives a Final Non-Confirmation notice the employee must be terminated. If an employer continues to employ an individual after receiving a Final Non-Confirmation notice, the USCIS will consider the employer to be in violation of immigration law.

More information on the E-Verify system is available at http://www.uscis.gov/e-verify.

No-Match Rule

Last month, DHS published a proposed rule that would rescind the controversial 2007 no-match rule. The no-match rule (also called the “safe harbor rule”) was issued in 2007 to amend regulations relating to the unlawful hiring and continued employment of unauthorized aliens. Among other changes, the no-match rule expanded the definition of “constructive knowledge” of an immigration law violation, requiring an employer that receives a no-match letter from the SSA to take reasonable steps to resolve the discrepancy and verify the employee’s identity. The rule required employers to terminate such employees if they are unable to resolve the discrepancy. The no-match rule, however, has been tied up in an extensive court battle and has never taken effect.

The SSA will continue to send employers no-match letters when a discrepancy is found, and employers should continue to follow the instructions set forth in such a letter. Unless an employer has actual knowledge that an employee is not authorized to work, or constructive knowledge from some other source (aside from the no-match letter itself), it is not necessary to terminate the employee. Simply stated, the receipt of a no-match letter will not constitute constructive knowledge of an immigration law violation. Employers that have been audited by SSA and/or DHS, however, and receive a no-match letter as a result of the audit, should continue to follow the instructions included in the letter, including terminating employees whom they have been directed to terminate.

DHS expects to issue a final rule rescinding the no-match rule, by the end of September. The proposed rule explains that DHS’s compliance and enforcement efforts will focus primarily on expanding E-Verify.