On June 6, 2008, President Bush amended Executive Order 12989 to direct all federal departments and agencies to require contractors to agree to use an electronic employment eligibility verification system to verify the employment eligibility of (i) all people 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. Executive Order 12989 does not address whether or not subcontractors also will be required to use E-Verify, but the order does grant rulemaking authority to the Department of Homeland Security (DHS). 

At a press conference on June 9, DHS Secretary Michael Chertoff designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use for compliance with Executive Order 12989, as amended. E-Verify is operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration. Federal departments and agencies are already enrolling with E-Verify to check the status of all new hires within the federal workforce.

On June 9, agencies responsible for federal acquisition regulations (FAR) sent a Notice of Proposed Rulemaking to the Federal Register to solicit public comment for 60 days on proposed changes to the FAR. The FAR will be amended to the extent necessary to “implement the debarment responsibility, the employment eligibility verification responsibility, and other related responsibilities.”

On May 22, 2008, the Employment and Training Administration (ETA) of the Department of Labor (DOL) published proposed regulations that would amend the process for obtaining temporary, nonagricultural foreign employees under the H-2B program. The proposed changes would streamline the H-2B visa process and give the DOL a role in the enforcement of the H-2B process. 

Under § 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA), an H-2B worker is a nonimmigrant admitted to the U.S. on a temporary basis to perform temporary nonagricultural labor or services. Employers seeking to obtain H-2B visas have to fulfill a two-step process. First, they have to secure a DOL certification that there are not enough able and qualified U.S. workers available for the position and that the employment of the foreign workers would not adversely affect the wages and working conditions of similarly employed U.S. workers. Second, once they have obtained a certification, employers have to work with the Department of Homeland Security (DHS) to obtain the H-2B visa.

Under the proposed rule, employers would attest that they had complied with all H-2B program requirements, but would not have to submit documentation supporting their recruitment efforts.  However, employers would be required to retain evidence of such efforts for five years from the date of certification. Employers would also be subject to fines and other penalties, including program debarment, for failing to comply with all H-2B program requirements. This process would replace the current process where employers must receive certification from the relevant state workforce agency that the program requirements have been satisfied.

The proposed rule also eliminates the duplication of effort between state workforce agencies and ETA. Employers would file H-2B applications directly with ETA rather than filing with the state workforce agencies first. In addition, employers would obtain applicable prevailing wage determinations for their specific job opportunities directly from the DOL rather than from the state workforce agencies. 

The proposed rule enhances protection for U.S. and foreign workers. Employers would be prohibited from passing on to H-2B workers the costs associated with participation in the program, including application and recruiting costs and attorney fees. 

Finally, the proposed regulations describe a potential DOL enforcement role in ensuring that employers comply with the H-2B provisions. In 2005, Congress vested DHS with H-2B enforcement authority. The proposed regulations contemplate the “DHS and the Department [of Labor] work[ing] out a mutually agreeable delegation of enforcement authority from the DHS to the Department [of Labor].” If an agreement is reached, the DOL Wage and Hour Division would be authorized to assess civil fines of up to $10,000 per violation for willful violations and refusal to cooperate in DOL audits or investigations.

Employers or interested persons who wish to comment on the proposed regulations must do so by July 7, 2008. If parties wish to comment on the proposed draft forms included in the proposed rule, then they may do so until July 21, 2008.

On April 8, 2008, DHS announced that it had received enough H-1B visa petitions to meet the cap for fiscal year 2009 (October 1, 2008 to September 30, 2009). H-1B visas may be granted to highly skilled, college-educated, temporary foreign workers for a maximum of six years, but only 65,000 H-1B visas may be issued per year. DHS’s Citizenship and Immigration Services received approximately 163,000 visa petitions during a five-day filing period, and the visas will be distributed via lottery. 

In March and April 2008, three bills were introduced to raise the annual H-1B visa cap and to recapture and redistribute unused visas from prior years. For summaries of the pending legislation, please see our posts on The Strengthening United States Technology and Innovation Now Act (H.R.5642), the Global Competitiveness Act of 2008 (S.2839), and House Bill H.R.5882.

On March 24, 2008, DHS published an interim rule amending its regulations (8 C.F.R. § 214) governing H-1B visa petitions filed on behalf of alien workers. The rule prohibits “a petitioner from filing more than one petition based on the H-1B nonimmigrant classification on behalf of the same alien temporary worker in a given fiscal year if the alien is subject to a numerical limitation or is exempt from a numerical limitation by virtue of having earned a master’s or higher degree from a U.S. institution of higher education.” 

The rule was written to prevent petitioners from unfairly attempting to increase their chances of being selected in the random H-1B visa lottery. Prior to this rule, when USCIS approved a petition for a specific individual, it denied any duplicate petitions subsequently adjudicated.  However, there were no adverse consequences for a petitioner that sought to maximize his or her chances in the lottery by filing multiple petitions. Now if a petitioner is found to have filed multiple petitions, all the petitions will be denied and the filing fees will not be refunded. If duplicate petitions are discovered after the worker is granted an H-1B visa, it will be revoked.   

Written comments concerning the interim rule must be submitted on or before May 23, 2008. Information on how to submit comments may obtained on the federal government’s regulations website.

On April 25, 2008, the comment period for the Department of Homeland Security’s supplemental proposed rule on “no-match” letters closed. Published on March 26, 2008, the proposed “supplemental rule” amends the original rule published on August 15, 2007 to address three concerns raised by Judge Charles Breyer (Northern District of California) when he preliminarily enjoined implementation of the original rule in October 2007.

The proposed supplemental rule does not change the original rule’s safe harbor provisions that provide employers a 30-day period to determine whether no-match results were caused by errors on their part. If the no-match results were not due to employer error, employees would have 60 days to resolve the discrepancy with the SSA.  Rather, the supplemental rule focused on procedural considerations connected with implementation of the original rule.

The supplemental rule contains a clarification that DHS does not believe the no-match rule changed its policy on the use of no-match letters and, if it did, the change was reasonable. DHS explains that the rule was written to eliminate ambiguity regarding an employer’s responsibilities upon receipt of a no-match letter, since “existing law clearly establishes that employers may be charged with constructive knowledge when they fail to conduct further inquiries in the face of information that would lead a person exercising reasonable care to learn of an employee’s unauthorized status.”

The supplemental rule also rescinds the anti-discrimination provisions included in the original rule and refers employers to the Justice Department for further guidance. The district court was concerned that the anti-discrimination provisions created a serious question of whether DHS had exceeded its authority by interpreting anti-discrimination provisions of the INA (which are enforced by the Justice Department’s Office of Special Counsel and not DHS) to preclude enforcement where employers follow the safe-harbor framework.

Finally, although DHS continues to maintain that the no-match rule “would not have a significant economic impact on a substantial number of small entities” and that the Regulatory Flexibility Act does not mandate it, DHS published an initial regulatory flexibility analysis (IRFA).  Published in response to the preliminary injunction, the IFRA allowed public review and comment on the costs that may be incurred by employers who choose to adopt safe harbor procedures.

According to a study submitted with the U.S. Chamber of Commerce comment to the supplemental rule, the no-match rule would cost employers between $1 billion to $1.6 billion per year to implement. Accordingly, the U.S. Chamber of Commerce requested the no-match rule be withdrawn until a proper Regulatory Flexibility Analysis is conducted. 

Immigrant advocacy groups also submitted comments voicing their concerns that the new rule would cause employers to incorrectly assume that workers listed in no-match letters are not authorized to work and fire them without giving them a chance to correct their records. These groups also expressed concern that the rule may result in increased discrimination based on race and national origin. 

DHS has not announced a timetable for its next action or the promulgation of a final rule. A DHS spokeswoman explained that the department wants to ensure a “quality review” of the hundreds of comments submitted.

The public comments received by the department may be reviewed on the government’s regulations website. 

On December 14, 2007, District Court Judge Charles R. Greyer granted the Department of Homeland Security’s motion to stay the proceedings in AFL-CIO v. Chertoff, Case No. 07-CV-4472 CRB (N.D. Cal.) pending new rulemaking planned by DHS to address the court’s concerns. On October 10, 2007, Judge Greyer had issued a preliminary injunction enjoining DHS and the Social Security Administration (SSA) from implementing the Final Rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” The new rule identifies the receipt of a no-match letter from the SSA as evidence that the employer had “constructive knowledge” that the employees listed in the letter were not authorized to work in the United States unless the employer takes certain steps within a specific time frame. The case is scheduled for a status conference on March 28, 2008. DHS has appealed the preliminary injunction to the 9th Circuit.

On October 10, 2007, a federal court issued a preliminary injunction in AFL-CIO v. Chertoff, Case No. 07-CV-4472 CRB (N.D. Cal.). The court enjoined the Department of Homeland Security and the Social Security Administration (SSA) from implementing the Final Rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” The new rule identifies the receipt of a no-match letter from the SSA as evidence that the employer had “constructive knowledge” that the employees listed in the letter were not authorized to work in the United States. As a result of the litigation, the SSA announced in November that no-match letters would not be sent out in 2007 and that it is unlikely any such letters would be sent out before Spring 2008.On November 23, Acting Assistant Attorney General Jeffrey Bucholtz filed a motion to stay the proceedings in the case on the basis that “DHS intends to conduct additional rulemaking proceedings to address the issues raised by the Court.” For instance, DHS plans to prepare a Regulatory Flexibility Act analysis. The motion is unopposed and requests a stay until March 24, 2008 or until an amended final rule is issued, whichever occurs first. A hearing on the motion has been scheduled for December 14, 2007.

On December 4, the DHS appealed the preliminary injunction to the Ninth Circuit.  DHS Secretary Michael Chertoff announced that the department still intends to issue a supplement to the rule that specifically addresses the grounds on which the district court based its injunction.  Secretary Chertoff added that “by pursuing these two paths simultaneously, [his] aim is to get a resolution as quickly as possible so [DHS] can move the No-Match Rule forward and provide honest employers the guidance they need.”

On November 7, 2007, U.S. Citizenship and Immigration Services (USCIS) issued a revised Form I-9, Employment Eligibility Verification, and M-274, Handbook for Employers, Instructions for Completing the Form I-9. Employers must use the amended Form I-9 for all individuals hired on or after November 7, 2007. The Department of Homeland Security (DHS) published a Notice in the Federal Register on November 26, 2007, which provides a 30-day grace period for employers to transition to use of the new Form I-9. After December 26, 2007, employers who fail to use Form I-9 (Rev. 06/05/07) may be subject to all applicable penalties under section 274A of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324a, which is enforced by U.S. Immigration and Customs Enforcement (ICE).

The new Form I-9 makes changes to List A of the List of Acceptable Documents and advises employers that a new employee is not required to provide a social security number unless the employer participates in E-Verify. The new form and manual may be found at: http://www.uscis.gov/files/form/I-9.pdf and http://www.uscis.gov/files/nativedocuments/m-274.pdf. The Notice in the Federal Register may be found at: http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-5790.pdf.