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CCH® PAYROLL — 07/15/09

DHS to rescind no-match rule

Moving forward with the Obama Administration's worksite enforcement strategy, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Administration's support for a rule amending the Federal Acquisition Regulation (FAR) to require that certain federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, use the federal government's E-Verify program. Napolitano's July 8, 2009, declaration came as she announced the DHS's intention to rescind the federal agency's much beleaguered no-match rule, which has never been implemented pursuant to a preliminary injunction currently in effect.

"E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce," said Secretary Napolitano. "Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department's continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator [Charles E.] Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will."

E-Verify, administered by the DHS's Citizenship and Immigration Services Bureau, in partnership with the Social Security Administration (SSA), is a free, voluntary, web-based program that allows employers to verify that their employees are authorized to work in the United States (i.e., it compares information from the Form I-9, Employment Eligibility Verification, against federal government databases to verify workers' employment eligibility). On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide, said the agency.

Westat, an independent research firm, found that 96.9% of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours, according to DHS. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69%.

E-Verify federal contractor rule

After a careful review, the Obama Administration will push ahead with full implementation of the E-Verify federal contractor rule starting September 8, 2009. The Administration delayed the effective date of the rule four times in total in order to complete its review of the rule. The final rule, which was published in the November 14, 2008, Federal Register, amended the FAR to require that certain federal contractors and subcontractors use the federal government's E-Verify program to verify that all new hires and existing employees directly performing work under federal contracts must be authorized to work in the United States. Specifically, the final rule inserts a clause into prime federal contracts with a period of performance longer than 120 days and a value above $100,000 requiring the use of E-Verify. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.

The rule is currently the subject of litigation. On December 23, 2008, a coalition of business groups, led by the Chamber of Commerce's National Chamber Litigation Center, filed suit challenging the legality of the rule (Chamber of Commerce v Chertoff, DMd, No 8:08-cv-03444-AW). "Regardless of the Administration's ultimate decision in the rule, we stand by our lawsuit challenging the legality of the...rule. The Executive Branch may not make E-Verify use mandatory when Congress clearly said that it must be voluntary," said the Chamber in prior statements. In a July 8 statement, Robin Conrad, Executive Vice President of the Chamber's National Chamber Litigation Center, said that the litigation will proceed. The litigation had been stayed to August 16, 2009, pending the Administration's review of the rule.

E-Verify enhancements

In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program's ability to automatically verify naturalized citizens' status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated State Department passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to E-Verify's accuracy include: adding new tools to prevent fraud, misuse, and discrimination; strengthening training, monitoring, and compliance; and enhancing privacy protections. For more information on E-Verify, visit http://www.uscis.gov/everify.

No-match rule

DHS will soon be proposing a new regulation rescinding its no-match rule, which was blocked by Judge Charles Breyer of the Northern District of California shortly after issuance and has never taken effect. The rule would have required the SSA to include in the mailing of its no-match letters - which are sent to employers when an employee's name and Social Security number from their W-2 do not match SSA records - a separate insert letter from DHS explaining how employers are required to resolve such discrepancies, called safe harbor procedures. The safe harbor procedures are to be followed by employers to avoid a finding of constructive knowledge that the employee referred to in the letter is an alien not authorized to work in the United States. According to DHS, E-Verify addresses data inaccuracies that can result in no-match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

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