|
| |
|
| |
| Government Fails to Wait for Comprehensive Immigration Reform - Federal Contractor Regulations Become Effective 9/8/09 |
8/27/2009 |
|
| |
By Josie Gonzalez, Gonzalez & Harris
Much to the dismay of the Chamber of Commerce, the Associated Builders and Contractors and other plaintiffs, a U.S. District Court has ruled in favor of the government, upholding the legality of Executive Order 13465. This Order and related regulations mandate E-Verify usage not just for new hires of covered federal contractors and subcontractors, but also for any current employee that is assigned to perform contract work.
E-Verify is an electronic employment eligibility verification program which checks the databases of the Immigration Service, Social Security Administration and other governmental entities in order to verify the legitimacy of the work authorization documents recorded on the new hire I-9 form.
Some impacted employers have already taken steps to comply with the Executive Order by enrolling in E-Verify for new hires. However, many hoped that some kind of compromise might be reached that did not oblige them to verify existing workers -- at least until such time that comprehensive immigration reform was legislated that would grant a work permit for valuable, long term employees. The Executive Order will have a tremendous economic and social impact on companies that must now fulfill contracts without relying on the secure, well trained labor force that was in existence at the time the contract was entered into.
In general, covered companies must register in E-Verify, take a new Federal Contractor tutorial on line, and sign a Memorandum of Understanding within 30 days of the contract award date for any federal contract that requires participation in E-Verify. Compliance is also required for those with existing contracts where continued performance for at least six months is anticipated and the amount of work is considered substantial. After E-Verify enrollment, the employer then has to commence screening new hires and current workers within 90 days. After the 90 day phase-in period, new hire screening must be done within three days of hire.
Companies that have been E-Verify participants for 90 days or longer as of the date of the contract award have 90 days to verify existing workers assigned to work on the contract and the usual three days for new hires.
With just two weeks remaining for implementation, many critical questions remain unanswered. For example, because there is no clear guidance on what activities result in an employee being considered as performing work under the contract, some employers will reluctantly opt to E-Verify the entire workforce. Further, if a company has government contracts at only one location, must the employees at all other sites that share the same federal identification number be E-Verified? Additionally, does one need to complete a new I-9 for the re-verification of existing workers who already completed an I-9 at the time of hire?
While the receipt of federal funds including anticipated stimulus-related income from the American Recovery and Reinvestment Act of 2009 is vitally important for employers, so also is ensuring that participation in E-Verify does not expose one to increased ICE attention and resulting civil or criminal liability. E-Verify employers should know that ICE is data mining the E-Verify database in order to detect violations such as failing to uniformly use E-Verify for all new hires and failing to terminate employees after receipt of a final non-confirmation of work authorization. Further, ICE can also detect instances of identity theft where an employee uses a valid social security and permanent resident card and those cards are being used at multiple locations throughout the U.S.
What should an employer do now in advance of E-Verify enrollment? Of vital importance is: ensuring that one’s I-9s are in perfect order and that all work authorization is unexpired and updated; gingerly assessing the composition of the workforce to determine one’s potential casualties while avoiding gaining actual knowledge of employee usage of false documents; identifying and training the future E-Verify administrator within the company; and understanding how to implement E-Verify participation in a compliant and lawful manner.
For guidance on how to comply with this new government mandate and cope with its impact on your workforce, please do not hesitate to contact us.
Printable Version
|
|
|
