June 11, 2008
On June 9, 2008, the President amended Executive Order 12989 to require federal government contractors to "agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security"–the "E-Verify" system. The Department of Homeland Security (DHS) is expected to publish proposed rules implementing this Executive Order and establishing a more precise timetable next week.
E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is a system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to use their own computers and Internet connections to verify electronically the employment eligibility of their newly hired employees. There is no fee for use of this service. Many private sector employers have voluntarily adopted the E-Verify system in response to increasing focus on employment eligibility verification requirements–DHS reports that more than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States.
A number of states have become active in this area. E-Verify is now mandatory for every employer doing business in Arizona, for example, and several other states have passed laws requiring employers to take additional screening measures when hiring new employees that would be satisfied by use of E-Verify. Some of these laws, such as the Legal Arizona Workers Act, have been challenged on the basis that they are pre-empted by federal immigration law. (The challenge to the Arizona law was rejected by a U.S. District Court and is now on appeal to the Ninth Circuit, which will hear oral argument on June 12.) Proposals to require use of the system by all private sector employers have been advanced at the federal level, but have not yet become law.
Briefly stated, the E-Verify system works as follows. Upon hiring a new employee and completing the Form I-9 to ensure employment authorization (required for all new hires regardless of E-Verify participation), the employer submits information over the Internet taken from the Form I-9, including: the employee’s name and date of birth, Social Security Number (SSN), citizenship status declared by the employee, and other information from documents submitted by the employee. (In addition, in 2007, E-Verify introduced its Photo Screening Tool that allows the employer to compare the photographs on documents presented by certain non-citizen employees against photographs stored in DHS immigration databases, which are shown on the employer’s computer screen.)
The E-Verify query will establish that an employee is authorized to work, or the employer will receive a “tentative non-confirmation” (TNC). The employee must be notified of the TNC and given an opportunity to contest it with the SSA or DHS. Non-contesting employees may not continue to work. Contesting employees may continue to work until the employer receives final confirmation from E-Verify regarding the employee’s authorization status. According to DHS, employers have run more than four million queries so far in fiscal year 2008. Of those queries, DHS reports that 99.5 percent of qualified employees have been cleared automatically by E-Verify.
Regardless of whether an employer decides to use E-Verify, it should ensure it is in full compliance with the Immigration Reform and Control Act and associated regulations. Worksite inspections by Immigration and Customs Enforcement (ICE) have increased in frequency, resulting in criminal and civil enforcement proceedings. At the same time, employers need to be careful to avoid overzealous efforts that might lead to claims of unlawful employment discrimination based on citizenship status or national origin, which can be pursued by the Equal Employment Opportunity Commission and the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices.
Gibson, Dunn & Crutcher lawyers have significant experience counseling employers to ensure compliance with employment authorization laws and regulations and in responding to governmental audits and investigations. If you would like to discuss these or other labor and employment law or government contracting issues, please contact the Gibson Dunn attorney with whom you work or Labor & Employment partner Jason C. Schwartz (202-955-8242, firstname.lastname@example.org), Eugene Scalia (202-955-8206, email@example.com), the co-chair of our Labor & Employment Practice Group, or Joseph D. West (202-955-8658, firstname.lastname@example.org), the chair of our Government & Commercial Contracts Practice Group, in the firm’s Washington, D.C. office.
© 2008 Gibson, Dunn & Crutcher LLP
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