By Kamana Mathur
MathurLaw LLC
www.MathurLaw.us
News Bulletin: E-Verify Mandate Delayed to February 20, 2009
The start date of the mandatory use of E-Verify by government contractors as described below has been postponed to February 20, 2009 pending the outcome of recent court challenges. Federal Register/Vol. 74, No. 9/Wednesday, January 14, 2009.
IMPORTANT CHANGES IN EMPLOYMENT VERIFICATION LAWS, I-9 AND E-VERIFY EFFECTIVE JAN 2009
The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the identity and work eligibility of all employees (citizens and non-citizens) hired after November 6, 1986 using the Employment Eligibility Verification Form I-9. Employers are prohibited from directly or indirectly hiring an alien who is not authorized to work in the U.S. IRCA also prohibits discrimination against employees or prospective employees based on their national origin or citizenship status.
Immigration Laws in the U.S. have undergone dramatic changes in recent years. This includes increased enforcement of employment verification laws and regulations, and the imposition of severe civil and criminal penalties on those employers who fail to comply with the law, keep adequate records, or knowingly or with “gross disregard” of the facts maintain employees, contractors, or sub-contractors who are not legally authorized to work in the U.S.
Two recent changes Employers should be aware of in order to protect themselves from Civil and Criminal Liability are:
1. New I-9 Rule Changes Documentation Requirements
DHS published on December 17, 2008 (Volume 73, No. 243) an interim final rule that changes the Employment Eligibility Verification (Form I-9) process. This rule narrows the list of acceptable identity documents and specifies that expired documents are no longer acceptable forms of identification. Employers must use the revised Form I-9 for all new hires and to re-verify any employee with expiring employment authorization beginning 45 days (January 31, 2009) after publication in the Federal Register. The current version of the Form I-9 (dated 06/05/2007) will no longer be valid.
Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only.
The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. USCIS no longer issues these cards, and all that were in circulation have expired. The rule also adds to List A of Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI). The rule makes other, technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.
2. Use of EVERIFY Mandated for all Federal Contractors, Sub-Contractors, Suppliers, Vendors from January 15, 2009.
E-Verify, a previously voluntary program that helps employers verify the legal status and eligibility to work of prospective employees, will be mandatory from January 15, 2009 for all Government Contractors, Sub-Contractors, affiliates, suppliers, vendors, or service providers pursuant to Amended Executive Order 12989 . Information entered in E-Verify is matched with Social Security Administration (SSA) and Department of Homeland Security (DHS) records. E-Verify will issue a confirmation, tentative confirmation, or final non-confirmation if the records do not match. There are strict guidelines regarding Employer action (and inaction) following the issuance of such letters. Fines, penalties, and even criminal charges resulting in prison time can ensue if appropriate action is not taken.
It is important that companies develop a compliance program that will ensure that all Immigration and Employment Discrimination Laws and regulations are being followed and protect companies from Civil or Criminal Liability in the event of non-compliance.
