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FOOTNOTES
FN1. See Exec. Order No.
13,465, 73 Fed. Reg. 33,285 (June 11, 2008). This
order revised Exec. Order No. 12,989, 61 Fed. Reg. 6,091 (Feb. 15, 1996), titled
“Economy and Efficiency in Government Procurement Through Compliance With Certain
Immigration and Naturalization Act Provisions.” Among
other things, Exec. Order 13,465 amended the title of Executive Order 12,989 to
“Economy and Efficiency in Government Procurement through Compliance with Certain
Immigration and Naturalization Act Provisions and
the Use of an Electronic Employment Eligibility Verification System” (italics added). FN2. This significantly expands the federal government’s longstanding policy barring federal agencies from contracting with employers who violate the Immigration and Reform Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C.), by employing unauthorized workers or discriminating against U.S. workers. See 8 U.S.C. §§ 1324a -1324b. FN3. See
FAR Case 2007-013, Employment Eligibility Verification, 73 Fed. Reg. 67,651 (Nov. 14,
2008) (to be codified at 48 C.F.R. pts. 2, 22, and 52). FN4. The Rule’s implementation date was
initially set for January 15, 2009, 60 days after the Rule was published in the Federal
Register. See id. at. 67,651.
However, the effective date of the Rule was delayed several times (to May
19, 2009, June 30, 2009, then finally September 8, 2009) so that President Barack
Obama’s Administration could review the Rule and briefing could take place in a lawsuit filed by the U.S.
Chamber of Commerce in federal court in Maryland requesting that the Rule be declared
invalid. On July 8, the Administration indicated its
full support of the Rule, and on August 26, the federal court upheld the Rule
and dismissed the suit by the Chamber. Although
the Chamber appealed the ruling and requested expedited consideration of its emergency
motion to enjoin the Rule pending appeal, the federal court denied the motion. The Rule thus became effective September 8, 2009. See infra. FN5. All covered contractors have this option (“the 180 day option”). See infra for a discussion of recent confirmation from E-Verify/DHS that universities may elect the 180 day option and that this option will be added to the system for universities in December 2009. FN6. The first iteration began as part of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), P.L. No.
104-208, 110 Stat. 3009 (1996). That Act
created a “Basic Pilot Program” to test in five states a web-based system to
verify the employment authorization of employees by comparing the documents presented in
conjunction with the I-9 process to the information contained in the government databases. Employers only participated voluntarily and, even
then, could only use the system to verify new hires, not the existing workforce. In 2003, the Basic Pilot Program was expanded so
that employers in all 50 states could voluntarily participate. In 2007, the program was re-branded
“E-Verify.” As a pilot program,
E-Verify must be renewed periodically by Congress. Most
recently, the 2010 Department of Homeland Security Appropriations Act, signed into law on
October 28, 2009, extended E-Verify for another three years, until September 30, 2012. See
Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, 123 Stat.
2142. FN7. E-Verify employers have additional
Form I-9 requirements that other employers do not have.
These requirements include: (1) accepting only a List B document that
contains a photo; (2) requiring that an employee have a social security number at the time
of making the query in E-Verify; and (3) writing the E-Verify query number on top of the
I-9 Form or attaching a print-out of the query confirmation to the I-9. FN8. See
supra note 4. FN9. See FAR Case 2007-013, Employment Eligibility
Verification, 73 Fed. Reg. at 67,679. The
Federal Acquisition Regulations apply exclusively to acquisitions by the federal
government. See FAR 1.104 (explaining that the Federal
Acquisition Regulations apply “to all
acquisitions as defined in Part 2
of the FAR, except where expressly excluded”); 2.101(b)(2) (defining acquisition
as “the acquiring
by contract with appropriated funds of supplies or services (including construction) by
and for the use of the Federal Government through purchase or lease, whether the supplies
or services are already in existence or must be created, developed, demonstrated, and
evaluated”). Thus, if a federal contract
does not involve an acquisition by the federal government, the contract will not implicate
the Rule. FN10. The Rule provides that the IDIQ
contracts should be modified on a bilateral basis in accordance with FAR 1.108(d)(3) to
require E-Verify enrollment if the remaining period of performance under the
contract extends at least six months after September 8, 2009 and if the remaining work
under the contract is expected to be “substantial.” FAR Case 2007-013, Employment Eligibility
Verification, 73 Fed. Reg. at 67, 685. FN11. 48 C.F.R. § 22.1803. FN12. 48 C.F.R. § 52.222-54(e). FN13. 48 C.F.R. § 22.1803. The regulations also
exempt items that would be COTS items - but for minor modification, items that would be
COTS if they were not bulk cargo, and certain commercial services related to the COTS
purchase. Id. FN14.
See FAR
Case 2007-013, Employment Eligibility Verification, 73 Fed. Reg. at 67,669, 67,679. A “grant” is defined as “an award of
financial assistance that, consistent with 31 U.S.C. 6304, is used to enter into a
relationship -- (a) The principal purpose of which is to transfer a thing of value to the
recipient to carry out a public purpose of support or stimulation authorized by a law of
the United States, rather than to acquire property or services for the Federal
Government's direct benefit or use; and (b) In which substantial involvement is not
expected between the Federal agency and the recipient when carrying out the activity
contemplated by the award.” 31 C.F.R. § 20.650. A
“cooperative agreement” is defined as “an award of financial assistance
that, consistent with 31 U.S.C. 6305, is used to enter into the same kind of relationship
as a grant . . . except that substantial involvement is expected between the Federal
agency and the recipient when carrying out the activity contemplated by the award.” 31 C.F.R. § 20.620. FN15. See FAR 2.101. FN16. FAR Case 2007-013, Employment
Eligibility Verification, 73 Fed. Reg. at 67,669. For
a more detailed discussion of these exemptions as well as additional types of contracts
exempt from E-Verify, see “E-Verify and the
Federal Contractor Rule for Colleges and Universities” by FN17. Although a university will not be required to enroll in E-Verify pursuant to federal law in the absence of a qualifying federal contract, there is a growing number of state laws that require employers to enroll in E-Verify. See infra. In addition, should the "non-federal contractor" university opt to enroll on a voluntary basis or pursuant to state law, that university may only use E-Verify to verify new employees. FN18. The MOU can be found at this link. FN19. The Rule incorporates the definition of “institution of higher education” found at 20 U.S.C. §1001(a). Section 1001(a) provides that an “institution of higher education” means an educational institution in any state that - -
FN20.
The reason the Rule adopts the exemption for
institutions of higher learning permitting them to avoid having to E-Verify all new hires
is because of the large number of students with intermittent employment. The preamble to the Rule states: “The Councils
recognize that coverage of a large number of educational institutions was not anticipated
in the proposed rule. These entities have a
large number of students with intermittent employment, which may complicate these
institutions’ efforts to comply with E-Verify requirements.” FAR Case 2007-013, Employment Eligibility
Verification, 73 Fed. Reg. at 67,682. FN21. See 48 C.F.R. §§ 22.1802(c), 52.222-54(d). FN22. See 48 C.F.R. § 22.1801 (defining “employee
assigned to the contract”). FN23. For a more detailed discussion of
“assigned employee,” see
“E-Verify and the Federal Contractor Rule for Colleges and Universities” by FN24. After the 90-day phase-in period,
initial queries on new hires must be made within 3 days or within 30 days for existing
employees assigned to the contract. FN25. Although the regulation states that a
contractor may elect to verify all employees hired after November 6, 1986 and shall
initiate verification of all such existing employees “within 180 calendar days of (i)
Enrollment in the E-Verify Program; or (ii) Notification to E-Verify Operations of the
Contractor’s decision to exercise this option…” (48 C.F.R. §
52.222-54(b)(4)), the October 21, 2009 Supplemental Guide for Federal Contractors
(“Supplemental Guide”) suggests that the choice must be made at enrollment:
“NOTE: If you choose to verify your entire
existing workforce in E-Verify, you must verify all of your existing employees except
those that are exempt . . .. Once you decide either to verify the entire workforce or to
verify only those employees assigned to a contract with the FAR E-Verify clause, you
are not permitted to change that decision.” USCIS, E-Verify Supplemental Guide
for Federal Contractors (M-574A) 16 (Oct. 21, 2009) (emphasis added). The Supplemental Guide can be found at this link. Various groups are seeking clarification and/or
modification of this guidance as it is not only inconsistent with the regulations, but it
is inconsistent with the rationale underlying the 180 day option—to allow contractors
that find it difficult to identify those assigned to the contract the option of querying
the entire workforce. FN26. See November 25, 2009 Response by the DHS
E-Verify team to inquiry regarding university option to verify employment eligibility of
all existing employees by Elise Fialkowski. The
correspondence can be found at www.worksite-enforcement.com
under the E-Verify subheading. FN27. 48 C.F.R. §§ 22.1802(b)(2),
52.222-54(b)(1)(ii), 52.222-54(b)(2)(i)(A) & (B). FN28. 48 C.F.R. §§ 52.222-54(b)(1)(ii). If your university is already enrolled in E-Verify,
but not designated as a federal contractor in the system, update the university’s
profile in the system and designate it as a federal contractor within 30 days of the of
the covered contract award. FN29. 48 C.F.R. § 52.222-54(b)(2)(ii). FN30. 48 C.F.R. § 52.222-54(b)(4). FN31. Although the MOU provides that
“no person or entity participating in E-Verify is civilly or criminally liable under
any law for any action taken in “good faith” on information provided through the
confirmation system,” this provision does not fully insulate an employer against
claims and charges of discrimination partially because such claims are often based heavily
upon facts. In addition, the Office of Special
Counsel has confirmed that an employer can only rely on a “good faith” defense
if the employer used the E-Verify system correctly. In
other words, if the university used E-Verify to query an existing employee before it was a
federal contractor, for example, it could not rely on the E-Verify result to avoid a
discrimination claim. FN32. There
are civil penalties of $550-$1,100 for failure to notify.
In addition, if the university continues to employ the individual after a
Final Non-Confirmation, there is a rebuttable presumption of a violation of the
Immigration and Nationality Act (INA) Section 274A, relating to employment of unauthorized
workers, subjecting the employer to additional fines and penalties. FN33. To
date, USCIS has refused to limit that portion of the MOU to requests for
documentation/information related to E-Verify queries.
This means an employer’s I-9s and personnel records—even those in
place prior to an employer participating in E-Verify—could be subject to review under
the MOU. Therefore, this section could result
in a waiver of employer protections even for non-E-Verify records. But also recognize, that DHS has always had
authority to audit I-9 and payroll records under the Immigration Reform and Control Act. 8 FN34. If the employee was previously
verified in E-Verify, update or reverify this employee in accordance with Form I-9
regulations, such as when their biographical or immigration status changes. These employees may not be reverified in E-Verify. Employers
have two options for updating existing employees on Form I-9. The first option is to complete new Forms I-9 for
those existing employees that need to be verified, applying the current Form I-9 rules. Verifying all employees in the same way helps to
avoid possible discrimination claims. This
approach has the added benefit of being the same process used for newly hired employees. The
second option is to complete new Forms I-9 when necessary and update existing ones when
allowable. Do this by reviewing your
employees’ previously submitted I-9 Forms to determine which employees must be
verified on a new Form I-9; and which can be verified by updating their existing Form I-9. When this option is selected, a new Form I-9 must
be completed if the employee: presented an expired document on a previous Form I-9; is an
alien whose employment authorization stated in Section 1 of Form I-9 has expired;
presented a List B document that did not have, or you are unable to tell if it had, a
photo; was at the time of attestation a Noncitizen National of the U.S; had a change in
immigration status; changed his name; or did not comply with I-9 requirements when the
form was previously completed. FN35. In
May 2009, the Department of Homeland Security (DHS) proposed two regulations that would
further allow for an expansion of data mining and enforcement activities based upon
E-Verify. See Proposed rulemaking amending the
Privacy Act, Freedom of Information Act regulations (DHS Docket No. DHS-2009-0013), 74
Fed. Reg. 23,957 (May 22, 2009); Notice of Privacy Act system of records (DHS Docket No.
DHS-2009-0015), 74 Fed. Reg. 24,022 (May 22, 2009). In
these regulations, DHS announced that it intends to establish a system of records, the
Compliance and Tracing and Monitoring System (CTMS), in order to mine the E-Verify data to
support monitoring and compliance activities. FN36.
Early in the new Administration,
Secretary Janet Napolitano directed a review of the E-Verify system, noting,
“E-Verify has encountered criticism both for false negatives (persons who are
authorized to work but who nonetheless receive a tentative non-confirmation from the
system) and for false positives (unauthorized aliens who receive a confirmation because
they have borrowed or stolen the identity of an authorized worker).” Department of Homeland Security Press Release,
Secretary Napolitano Issues Immigration and Border Security Action Directive (Jan. 30,
2009), available at http://www.dhs.gov/ynews/releases/pr_1233353528835.shtm. In May 2008, USCIS implemented a system-based
and data-source enhancement to address the high number of mismatches and faulty data
regarding foreign born US citizens. This
system reduced those mismatches only by about 39% resulting in continued mismatches for
foreign born US citizens that require follow up through USCIS or the Social Security
Administration. As further evidence of the
high error rate of the databases, USA Today reports that Intel, one of the largest U.S.
employers, had found that 12% of its 1,360 workers hired between January and July 2008
were initially rejected by the E-Verify system. Moreover, Intel challenged the 143
rejections and all of the workers were found to be legal U.S. workers. See Thomas Frank, “Use of Federal Database for
ID Checks Hits Some Bumps,” USA Today, Feb. 6, 2009, available at http://www.usatoday.com/news/nation/2009-02-05-immigration_N.htm. FN37. The
Department of Homeland Security’s own Privacy and Integrity Advisory Committee, in a
February 2009 letter to DHS Secretary Janet Napolitano, noted significant concerns with
regard to privacy and fraud and recommended that the program not be expanded until these
concerns are addressed: “The Committee recommends that DHS eliminate or significantly
reduce fraud vulnerabilities in the current E-Verify system.
At a minimum, such reductions should occur before further expanding the
mandated use of the system . . . The lack of procedures for authenticating the eligibility
of employers to use the system creates a significant opportunity for fraud, which could
result in legal residents and citizens becoming victims of identity theft.” Draft Letter from DHS Data Privacy and Integrity
Advisory Committee to Secretary Janet Napolitano and Acting Chief Privacy Officer John W.
Kropf (Feb. 2, 2009), AILA InfoNet Doc. No. 09020362 (last visited March 10, 2009). FN38.
The student TNCs, for example, must be resolved by
calling DHS within an eight day period. USCIS
has reported that they are actively working on improving the communication between SEVIS
and E-Verify to limit the number of such TNCs, but that process is not yet complete. FN39. On July 23, a bipartisan group
including Senate and House members reintroduced the SAVE Act (H.R. 3308 and S. 1505),
which would phase in mandatory use of E-Verify over four years starting with the federal
government, federal contractors and large employers. FN40. See
Department of Homeland Security Appropriations Act of 2010, Pub. L. No. 111-83, 123 Stat.
2142. FN41. State universities and
institutions may be considered public or state employers that are required to participate
in E-Verify. The North Carolina statute, for
example requires state universities to enroll in E-Verify.
Universities may also be required to participate as employers or state
contractors. Currently, Colorado, Georgia,
Minnesota, Mississippi, Missouri, Nebraska, Oklahoma, Rhode Island, South Carolina, and
Utah require E-Verify for employers who have public contracts with state agencies or
political subdivisions. Virtually all of these
states also require public employers to use E-Verify.
The Arizona and Mississippi statutes, which became effective, respectively,
in January and July of 2008, are the most far-reaching of current legislation because they
required all employers within the state to use E-Verify.
Effective July 1, 2009, South Carolina requires all employers with 100 or
more employees to (1) register and participate in E-Verify or (2) employ only workers who,
at the time of employment, had a valid South Carolina driver's license or identification
card, were eligible to obtain a South Carolina driver's license card, or possessed a valid
driver's license from another state where the license requirements are at least as strict
as South Carolina. See “E-Verify and the Federal Contractor Rule
for Colleges and Universities” by
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