Soon after the Obama Administration put the new head of the Department of Homeland Security (DHS) in place, the agency had to deal with two draft regulations that had been put on the back burner for some time. The first—the so-called social security no-match regulation— was nixed by the DHS without much elaboration. The no-match regulation, introduced by DHS through its police arm, Immigration and Customs Enforcement (ICE), proposed to hold employers liable for constructive knowledge of hiring unlawful workers who were the subject of no-match letters from the Social Security Administration, if the employers did not clear-up or terminate such employees within a prescribed period. The SSA regularly mails out these no-match letters to employers on behalf of certain employees whose social security numbers do not match their names on the SSA database. Opponents of the no-match regulation argued that the social security numbers bear little correlation to immigration status, and holding employers accountable for clearing up discrepancies would be costly to administer and ineffective in curtailing unlawful employment. With the regulation abandoned, employers again have little guidance on their obligations upon receiving no-match letters from the SSA.
While the DHS backed-off on the social security no-match regulation, in the same announcement the agency expressed support for the regulation requiring E-Verify for federal contractors. After the regulation was upheld by a federal district judge on August 25th, 2009, the effective date of September 8th, 2009 was solidified. This regulation is close to the flipside of the no-match regulation, which aimed to identify suspected unlawful employment using mismatched social security numbers. The purpose of the E-verify regulation is to force federal contractors to match the employee's social security number, as well as other data, to confirm employment authorization. To date, employer participation in E-Verify was voluntary. Pursuant to the regulation, however, most contracts with the United States government after September 8th must contain a provision mandating that the contractor verify the employment eligibility of new hires with E-Verify during the contract term. In addition, the contractor will be required to verify whether current employees who are directly assigned to the contract are authorized to work. Within 30 days after being awarded contracts with the E-Verify clause, contractors are required to register onto E-Verify. The contractor must commence E-Verifying all new employees and those assigned to the contract within 90 days of registration.
While the DHS backs E-Verify as an enforcement device, the system has its limits. The E-Verify system is not error-proof. Individuals who may be unlawful are confirmed as lawful, while those who are authorized to work may have trouble being confirmed on the system. Neither does the E-verify system identify an employee's immigration status, nor fully protect against identity theft. In addition, E-Verify does not provide a safe harbor for employers—companies are still liable for constructive knowledge of unlawful workers, whether these employees were confirmed in E-Verify or not. On the other hand, zealous over-use of E-Verify is prohibited: except for the narrow exception provided for in the federal contractor regulation, E-Verify cannot be used to verify existing employees, nor can it be used to pre-screen job candidates. Lastly, E-verify does not excuse the proper completion of the DHS' I-9 Employment Verification form: E-Verify must be used in addition to proper adherence to the I-9 verification procedure.
In the DHS' ongoing efforts to enforce immigration laws, the agency will continue to push the use of automatic employment verification systems such as E-Verify. Although E-verify is only required of federal contractors now, the possibility that the system will become mandatory for all employers is in the foreseeable future.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
