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Washington Labor & Employment Wire » Immigration and Homeland Security

DHS Announces Commitment to E-Verify, Recission of No-Match Rule


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On July 8, 2009, the Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Administration’s support for a regulation that requires employers to use E-Verify in order to be awarded federal contracts. Additionally, the department announced its intention to rescind the controversial No-Match Rule.

Secretary Napolitano praised E-Verify as “a smart, simple and effective tool that reflects our continued commitment to working with employers to main a legal workforce.” The regulation requires the use of E-Verify by covered federal contactors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. The rule will take effect on September 8, 2009.

The federal government had announced a fourth delay in implementing the E-Verify rule on June 2, 2009, postponing the expected rollout date to September 8, 2009. The final rule, arising out of Executive Order 12989, was originally scheduled to take effect on January 15, 2009. The rule was initially postponed in January in response to a lawsuit filed by the U.S. Chamber of Commerce (Chamber of Commerce of the United States of America v. Chertoff, D. Md. No. 8:08-cv-3444) in the U.S. District Court for the District of Maryland challenging the legality of the rule.

E-Verify is an internet-based system administered by U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA), that compares information from an employee’s I-9 Form against federal government databases to verify employment eligibility. Once implemented, the regulation will require all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, to verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985.

The announcement came mere hours before the Senate approved an amendment to the 2010 Homeland Security appropriations bill that would make E-Verify permanent and would require all federal contractors to use E-Verify beginning September 8, 2009.

DHS also announced its intention to propose a new regulation to rescind the 2007 No-Match Rule. The No-Match Rule was never put in effect because it was blocked by court order shortly after its issuance. The No-Match Rule details steps employers may take when they receive a no-match letter from the SSA.  SSA informs employers by letter when specific employees’ names and corresponding Social Security numbers provided on the employers’ Form W-2 wage reports do not match SSA’s records.  These no-match letters may be used as evidence of an employer’s constructive knowledge that specific employees may be unauthorized workers.


DOL Lifts H-2A Suspension


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In response to a June 29, 2009 preliminary injunction from the U.S. District Court for the Middle District of North Carolina, the Department of Labor announced that it has lifted its suspension of the H-2A visa program final rule.

The final rule on the new H-2A labor certification regulations appeared in the Federal Register on December 18, 2008 and became effective on January 17, 2009. The final rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations, as well as regulations regarding the enforcement of contractual obligations entered into by such workers. On May 28, 2009, DOL had announced a nine-month suspension of these new H-2A labor certification regulations, and notice of the suspension was published in the Federal Register the next day.  The June 29, 2009 order from the Middle District of North Carolina federal court concluded an injunction against the suspension was appropriate because the DOL would suffer relatively little harm from the injunction, and the plaintiff growers associations would suffer irreparable harm in the absence of an injunction. 

Under the newly reinstituted final rule, employers must apply to DOL for H-2A labor certification before they can petition the federal Department of Homeland Security, U.S Citizenship and Immigration Services for the admission of H-2A workers to the United States for agricultural work on a temporary or seasonal basis. Under the new regulations, employers would have to complete a general attestation stating that they will abide by the H-2A process and must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4) recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment. Finally, employers are required to submit a job order to the applicable SWA.


USCIS Issues Guidance on Form I-9


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On June 26, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that the current Employment Eligibility Verification Form I-9 (Rev. 02/02/09) would continue to remain in effect beyond its planned expiration on June 30, 2009. Continued use of the current form is under review at the Office of Management and Budget (OMB). Employers should continue to use Form I-9 (Rev. 02/02/09) until OMB makes its decision. If OMB approves continued use of the current form, the revision and expiration dates will be updated. According to USCIS, employers will then be able to use the newly revised version of the form or the Rev. 02/02/09.

Form I-9 (Rev. 02/02/09) reflects changes made to employment verification documentation requirements outlined in the interim final rule, published Dec. 17, 2008 in the Federal Register. The final rule took effect on April 3, 2009. Most significantly, the final rule precludes the use of expired employment verification documentation and other documents no longer issued by USCIS.


U.S. Government Delays Implementation of E-Verify Until September 2009


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On June 2, 2009, the federal government announced a fourth delay in the rule requiring the use of the E-Verify system, postponing the expected rollout date to September 8, 2009.The final rule, arising out of Executive Order 12989, was originally scheduled to take effect on January 15, 2009. The rule was initially postponed in January in response to a lawsuit filed by the U.S. Chamber of Commerce (Chamber of Commerce of the United States of America v. Chertoff, D. Md. No. 8:08-cv-3444) in the U.S. District Court for the District of Maryland challenging the legality of the rule.

On June 2, the district court granted a motion to extend a stay currently pending in the case to postpone implementation of the rule until August 2009. The federal government has postponed implementation of the rule three additional times since the initial January postponement in response to the lawsuit to allow the Obama Administration the opportunity to review the rule prior to its implementation.

E-Verify is an internet-based system administered by USCIS, in partnership with the Social Security Administration, that allows employers to verify employees’ work eligibility. The system is currently voluntary. Once implemented, the regulation will require all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, to verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985. The system has come under criticism for providing erroneous eligibility results that may occur due to changes in name or citizenship status, or simple data-entry errors, among other reasons.


Immigration Agents Shift Focus to Criminal Prosecution of Employers


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On April 30, 2009, the Department of Homeland Security (DHS) issued updated enforcement guidelines to its Immigration and Customs Enforcement (ICE) agents. Under the updated guidelines, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers. DHS announced that by prioritizing criminal prosecution of employers who knowingly “cultivate illegal workplaces,” ICE will “target the root cause of illegal immigration.” Agents are instructed to pursue evidence against employers prior to arresting workers. The department stated that it will continue to arrest and process for removal any illegal workers who are found in the course of these enforcement actions.

Under this new guidance, agents are required to obtain indictments, criminal arrest or search warrants, or a commitment from the U.S. Attorney’s Office to prosecute the employer prior to making any worksite arrests. The guidelines require that agents notify ICE headquarters at least 14 days before conducting a raid with a proposed strategy for prosecuting the employer. In addition to criminal enforcement, agents are encouraged to use civil fines and debarment from federal contracts to “penalize and deter illegal employment.”


U.S. Government Once Again Delays Implementation of E-Verify


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On April 17, 2009, the Department of Defense, General Services Administration, and National Aeronautics and Space Agency announced a third delay in the rule requiring the use of the E-Verify system, postponing the expected rollout date another six weeks to June 30, 2009.

Administered by USCIS and the Social Security Administration, E-Verify is an internet-based system that allows employers to verify employees’ work eligibility.  The currently voluntary system has been criticized for providing erroneous eligibility results due to name changes, citizenship status changes, and other data-entry or data processing errors.

Once implemented, the regulation will amend the Federal Acquisition Regulation to require all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, to use E-Verify to verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985.

The postponement stays the requirement for federal contracting officers to include the new employment eligibility verification clause in any solicitation or contract prior to June 30.  The rule would also require the modification of contracts in existence prior to June 30 to include the clause for future orders, if a substantial portion of performance on the contract extends beyond December 30, 2009.  The postponement was announced in the Federal Register on April 17.

The final rule, arising out of Executive Order 12989 as amended by President George W. Bush on June 6, 2008, was originally scheduled to take effect on January 15, 2009.  However, the rule was postponed in January in response to a lawsuit filed by the U.S. Chamber of Commerce (Chamber of Commerce of the United States of America v. Certoff, D. Md. No. 8:08-cv-3444) challenging the legality of the rule. Applicability of the rule has been extended two additional times to allow the Obama Administration the opportunity to review the rule prior to its implementation. 


USCIS Announces New H-1B Hiring Requirements for Companies Receiving TARP Funding


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On March 20, 2009, U.S. Citizenship and Immigration Services (USCIS) announced additional requirements for employers planning to hire foreign nationals to work in the H-1B specialty occupation category. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations in technical or theoretical fields, such as science, engineering, and computer programming. The changes apply to companies receiving funds through the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act (FRA).

As part of the American Recovery and Reinvestment Act (i.e., the stimulus package), on February 17, 2009, President Obama signed into law the “Employ American Workers Act” (EAWA).  The purpose of EAWA is to ensure that companies receiving funds under TARP or FRA do not displace U.S. workers. Companies who seek to hire new H-1B employees but have received funds under these programs are considered an “H-1B dependant employer.” 

H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application (LCA) and to USCIS when filing the H-1B petition.  These additional attestations include statements that: (1) the employer has made good faith efforts to recruit U.S. workers using industry-wide standards and offers compensation that is at least as great as that offered to H-1B workers; (2) the employer has offered the job to any U.S. worker who applies and is equally or better qualified for the job; (3) the employer has not “displaced” any U.S. worker through layoffs conducted within 90 days before or after the filing of the H-1B petition; and (4) the employer has not placed an H-1B worker with another employer without first inquiring whether that secondary employer has displaced or will displace any U.S. workers within a 90-day before or after the placement of the H-1B workers. 

These new requirements will apply to any petition filed after February 17, 2009 involving a new employer regardless of whether the worker is already in H-1B status. They also apply to petitions approved before February 17, 2009, where the worker did not commence employment before that date.  The requirements do not apply to current H-1B workers who seek to change their status with the same employer or extend current employment.

In addition, USCIS announced that it is revising Form I-129 (Petition for Nonimmigrant Worker) to ask if the petitioner has received any funding under TARP or the FRA.  It also announced that, beginning on April 1, 2009 it will accept H-1B petitions subject to the fiscal year 2010 cap (65,000 limit not including the first 20,000 petitions filed on behalf of aliens with a U.S. masters degree or higher). The necessary filing documents and other resources, including question and answer sections, are available on the USCIS website.


U.S. Government Delays Implementation of E-Verify


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On January 27, 2009, the Department of Defense, General Services Administration, and National Aeronautics and Space Agency once again delayed implementation of the E- Verify regulation, postponing the expected rollout date to May 21, 2009.

E-Verify is an internet-based system administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration, that allows employers to verify employees’ work eligibility. The rule amends the Federal Acquisition Regulation to insert a clause into federal government contracts committing certain contractors to use E-Verify. The postponement stays the requirement for federal contracting officers to include the new employment eligibility verification clause in any solicitation or contract prior to May 21. Notice of the delay was published in the Federal Register on January 30, 2009.

The final rule, arising out of Executive Order 12989 amended by President George W. Bush on June 6, 2008, was originally scheduled to take effect on January 15, 2009. A lawsuit filed on December 23, 2008 by the U.S. Chamber of Commerce and other plaintiffs against Secretary of Homeland Security Michael Chertoff and Civilian Agency Acquisition Council Chairman Albert Matera sought to declare the final rule and executive order invalid. The parties struck a deal in early January agreeing to delay implementation of the regulation until February 20, 2009, to allow the new administration an opportunity to review the rule. Implementation has been further delayed until May 21 to provide the new administration more time to review the rule and continue to improve and enhance the E-Verify system.

The E-Verify system is currently voluntary. If made effective, the regulation will require all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, to verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985. The system has come under criticism for providing erroneous eligibility results that may occur due to changes in name or citizenship status, or simple data-entry errors, among other reasons.


USCIS Delays Rule Changing List of Employment Eligibility Verification Documents


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On January 20, 2009, U.S. Citizenship and Immigration Services (USCIS) announced a 60-day delay for the implementation of the rule changing employment verification documents to April 3, 2009. The interim final rule, published in the Federal Register on December 17, 2008, alters the list of documents employers can accept to verify employment authorization on the Form I-9 and no longer allows employees to use expired employment verification documents. USCIS has reopened the public comment period for 30 days, until March 4, 2009.

Among other changes, the rule adds documentation allowed for citizens of Micronesia and the Marshall Islands, revises references to temporary I-551 stamps in unexpired foreign passports, removes forms I-688, I-688A and I-688B from the forms allowed for verification since they are no longer issued, adds references to Form I-94A, and revises the reference to Social Security Account Number Cards.

In addition to documentation and technical changes, the rule also revises Form I-9 itself, making “citizen of the United States” and “noncitizen national of the United States, as defined in 8 U.S.C. 1408″ two separate categories in the employee attestation portion of the Form, reorganizing the work authorization date and Alien Number in Section 1 of the Form, and adding instructions to allow employers to leave blank the expiration date of aliens whose work authorization does not expire.


DOL Issues New Regulations Governing H-2A and H-2B Visas and Reporting of Social Security Numbers Under the Davis-Bacon Act


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The Department of Labor (DOL) recently issued several new rules governing H-2A and H-2B visas, and the Davis-Bacon Act. 

H-2A Rule.  On December 18, 2008, theU.S. Department of Labor’s Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule amending the H-2A program for employing foreign workers in temporary or seasonal agricultural jobs. The final rule re-engineers the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A (agricultural temporary worker) status. The final rule utilizes an attestation-based application process based on pre-filing recruitment and eliminates duplicative H-2A activities currently performed by State Workforce Agencies (SWAs). 

The H-2A temporary agricultural visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature. “Temporary or seasonal nature” means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign workers is truly temporary.

Under the new process, employers must complete a general attestation stating that they will abide by the H-2A process. Additionally, employers must take four positive recruitment steps: (1) submit a job order to the SWA serving the area of intended employment; (2) run two print advertisements (one of which must be on a Sunday); (3) contact former U.S. employees who were employed within the last year; and (4)  recruit in all states currently designated, based on an annual determination made by Secretary of Labor, as a state of traditional or expected labor supply with respect to each area of intended employment in which the  employer’s work is to be performed. Finally, employers must submit a job order to the applicable SWA. 

The rule also establishes enhanced penalties for violations and new tools to ensure employer compliance, including audits, revocation of approved labor certifications, increased debarment authority and substantial increases in fines - up to $100,000 for violations resulting in serious injury or death of a worker. The rule also will prohibit employers and recruiters from charging fees to workers for access to jobs, a practice that in the past has led to many reported abuses.  The rule will go into effect on January 17, 2009.

H-2B Rule.  On December 18, 2008, the U.S. Department of Labor’s Employment and Training Administration (ETA) and Employment Standards Administration (ESA) published a final rule amending the H-2B program for employing foreign workers not working in agricultural jobs. The final rule re-engineers the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the DHS to employ a nonimmigrant worker in H-2B status.

The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. 

To show a “one time occurrence,” the employer must establish that the employer has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence. 

To show a “seasonal need,” the employer must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. 

To show a “peak load need,” the employer must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the employer’s regular operation.

Similar to the new process for H-2A visas described above, the new H-2B visa rule also adopts an employer-attestation model. Under the threat of fines and other penalties, employers will attest that they have complied with all the H-2B program’s requirements and submit evidence of their recruitment efforts along with their application.  The DOL may debar for up to three years employers, attorneys and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate with Labor Department audits or investigations.

The regulations also allow the DOL to reinstate illegally laid off U.S. workers, assess civil monetary penalties up to $10,000 and award back wages for violations of the program.  The final rule is effective on January 18, 2009.

Davis-Bacon Rule. On December 19, 2008, the DOL’s Wage and Hour Division (WHD) published a final rule revising regulations under the Davis-Bacon and related Acts (DBRA) and the Copeland Anti-Kickback Act to discontinue the reporting of employee social security numbers and personal addresses on weekly certified payrolls. Instead, employers will be required to use individual identifying numbers for employees that, “in virtually all cases,” will be the last four digits of each employee’s social security number. 

The Davis Bacon and Related Acts (DBRA) requires all contractors and subcontractors performing work on federal or District of Columbia construction contracts or federally assisted contracts in excess of $2,000 to pay their laborers and mechanics not less than the prevailing wage rates and fringe benefits for corresponding classes of laborers and mechanics employed on similar projects in the area. The prevailing wage rates and fringe benefits are determined by the Secretary of Labor for inclusion in covered contracts.

Employers working under DBRA-covered contracts should redact this personal information from weekly submissions to the WHD.  The final rule is effective on January 18, 2009.