Summary of Federal Laws
Employment
Miscellaneous Employment Laws
The Immigration and Nationality Act of 1952 (as amended)
8 U.S.C. § 1101 et seq.
Verification of of Employment Eligibility
I-9 Compliance: The Immigration Reform and Control Act of 1986 requires employers to verify that individuals hired after November 7, 1986 are legally entitled to work in the U.S. The 1986 amendments prohibit employers from knowingly hiring undocumented aliens and authorize fines of up to $2,000 for each illegal hire. This is known as the employment eligibility verification process, and a Form I-9 must be completed and kept on file for all employees. The form must be kept for three years after the date of hire or one year after termination. See 8 C.F.R. § 274a.2. The law also protects against discrimination on the basis of alienage and national origin. See 8 U.S.C. § 1324B.
*******E-Verify Supplemental Guide for Federal Contractors dated Sept. 8, 2009 Very helfpul, with colored charts! Published by ICE.
See also the Client Alert dated Sept. 10, 2009 titled USCIS Issues Guidance Regarding E-Verify Federal Contractor Rules and Reminds Employers that the Rule is Effective September 8, 2009 by Klasko immigration attorney Elise A. Fialkowski.
Latest on E-Verify:
Government to Require Verification of Workers NYTimes July 8, 2009.
After a number of delays, it looks like the Sept. 8th date will go forward for E-Verify. At the same time, the Obama administration plans to end the court battle on the no-match rule and will not force employers to fire workers whose SSN information does not match SSA records.
Federal District Court Upholds Mandatory E-Verify Rule for Federal Contractors by Jackson Lewis.
In a decision dated 8/26/09 in Chamber of Commerce of US v. Napolitano (US Dist. Court SD Maryland) the court upheld the legality of EO 13465. See also the CCH Labor and Employment Update dated 8/27/09.
E-Verify Further Delay: The federal government again postponed E-Verify for federal contractors, until Sept. 8, 2009. See the Littler Employment Law Update dated June 2, 2009 by Jay Sumner. See also the text at 74 Fed. Reg. 26981 (June 5, 2009).
Final Rule on Employment Eligibility Verification (E-Verify)(Supplements I-9 requirements)
73 Fed. Reg. 67651, November 14, 2008
In addition to I-9 requirements which are applicable to all employers in the United States, this rule requires certain contractors and subcontractors to use the USCIS E-Verify System to verify that certain employees are eligible to work in the United States. The rule is effective June 30, 2009 (See 74 Fed. Reg. 17793 (April 17, 2009)) and implements the Executive Order below. Under the final rule, institutions of higher education that qualify as federal contractors can choose to limit the E-Verify verification to only employees (existing or new hires) assigned to the federal contract in question. It will apply to federal contracts with a value of $100,000 or more and a performance period of greater than 120 days. The rule also applies to subcontracts of more than $3,000. See the USCIS FAQ on this issue. See NAFSA for more on this new rule, and also the Morgan Lewis article titled E-Verify Final Regulations for Federal Contractors is Released.
E-Verify Memorandum of Understanding for Employers: This is the document the Department of Homeland Security will require employers who are federal contractors (as noted below) to sign. As also is noted below, subject to legal challenge, the new start date for participation in the program is June 30, 2009. See sections C and D for a concise summary of employer/contractor obligations.
Memorandum titled Mandatory E-Verify for Research and Educational Institutions with Federal Contracts (December 2008) by Denise C. Hammond, Esq. Hammond Claxton, P.C. (denise@hammondclaxton.com and web page of www.hammondclaxton.com)
This is an excellent summary of the E-Verify amendment to the FAR. Note some dates may have changed since memo was written. See above for latest date.
See also the American Council On Education Comments on Proposed Rule Requiring Federal Contractors to participate in the E-Verify System: Dated August 11, 2008; addressed to the GSA; contending that the proposed rule is ultra vires; fails to account for problems international persons have in obtaining SSNs, there is no recourse for false non-confirmations; and error rates are too high, among other issues.
Social Security No-Match Letters
Final Rule: Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission; 74 Fed. Reg. 51447, Oct. 7, 2009
The Department of Homeland Security (DHS) is amending its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of No-Match letters. DHS is amending its regulations as proposed on August 19, 2009, without change. The final rule is effective Nov. 6, 2009. The October 2008 final rule established a safe harbor for employers who followed the safe harbor procedures set forth in the rule after receipt of a "no match letters" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. (SSA sends "no match" letters to some (though not all) employers when the combination of an employee's name and social security number on an employer's W-2 earnings reports do not match SSA records. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.
Electronic Signature and Storage of Form I-9, Employment Eligibility Verification, 71 Fed. Reg. 34510 June 15, 2006, Interim Rule, effective June 15, 2006
This interim rule amends Department of Homeland Security regulations to provide that employers and recruiters or referrers for a fee who are required to complete and retain Forms I-9, Employment Eligibility Verification, may sign and retain these forms electronically. This interim rule implements statutory changes to the Form I-9 retention requirements by establishing standards for electronic signatures and the electronic retention of the Form I-9. Written comments due on or before August 14, 2006.
Resources
International Student and Scholar I-9 Resource Page: Includes Statutes, guidance, Form I-9, and relevant Executive Orders and further information on E-Verify, including past federal register notices.
new page 5/28/09 mlo
updated 6/10/09 to add new E-Verify delay
updated 6/16/09 to add related policy and FR link for further delay on E-Verify
updated 7/10/09 to add E-Verify article in NYTimes
update 9/1/09 added on court case in E-Verify mlo
updated 9/11/09 updated to add E-Verify Supplemental Guide dated 9/8/09 (mlo)
updated 9/21/09 to add August 74 Fed Reg 74801 by mlo
updated 9/23/09 by mlo to add Klasko client alert
updated 10-22-09 to add Safe Harbor final recission
Last Revised 05-Nov-09 01:20 PM.
