Immigration News: Recent E-Verify Developments
By The Immigration Practice Group
There have been a number of immigration compliance and employment verification-related developments in recent weeks:
States Continue to Enact Laws Requiring Employers to Use E-Verify
During 2008, states have continued to pursue and enact legislation targeted at the employment of unauthorized aliens, complicating employers' compliance efforts. Many state legislative proposals require certain employers to enroll in the Department of Homeland Security's E-Verify program to verify the employment eligibility of newly hired employees, and it can be expected that this trend will continue, at least in the near future. In addition to the four states (Arizona, Georgia, Colorado and Oklahoma) that have already enacted laws requiring the use of E-Verify in at least certain circumstances, the following additional states have passed legislation or issued executive orders requiring the use of E-Verify this year:
Missouri: On Friday, May 16, 2008, the Missouri Legislature passed legislation which, among other things, will prohibit the knowing employment or hiring of unauthorized aliens and will require employers entering into contracts (or receiving grants) in excess of $5,000 with any state or local governmental agency to participate in E-Verify with respect to the employees working in connection with the contract. HB 1549, a consolidation of several pending immigration-related bills, is expected to be signed by Missouri Governor Blunt, who has been a vocal proponent for immigration enforcement legislation. Employers found in violation of the law's requirements can be penalized by having their business permits or licenses suspended. Employers who voluntarily participate in E-Verify are provided an affirmative defense that they have not knowingly employed an unauthorized alien. Public contractors who are determined to have violated the law's requirements will be deemed in breach of the contract with the state or local governmental agency and may be suspended or debarred from contracting with the state for three years.
Arizona: Arizona has amended its statute requiring all employers to use E-Verify. On May 1, 2008, the state enacted HB 2745, which amended a number of provisions in the Legal Arizona Workers Act (LAWA), enacted in 2007. The legal requirements for employers remain essentially the same. All employers are still required to use E-Verify to verify the employment eligibility of new hires. The amendments, which are effective immediately, clarify several provisions in the existing law, broaden the good faith defense available to employers, and reduce certain perceived weaknesses in the law's enforcement mechanisms. Some of the more important changes made by HB 2745 include the following:
The new statute clarifies that the penalty provisions in the law do not apply to any employees hired before January 1, 2008;
The law requires companies seeking grants or contracts from state or local government agencies to use E-Verify;
Employers may be held liable for knowingly or intentionally using independent contractors or vendors who employ unauthorized aliens;
The good faith defense available to employers who have complied with federal law requirements has been strengthened. An employer can be found to have complied with federal law requirements, and thus be entitled to the good faith defense in the statute, notwithstanding an "isolated, sporadic, or accidental technical or procedural failure" to comply;
Sheriffs' offices and other local law enforcement agencies are now authorized to investigate potential violations of the law;
The penalty provisions have been clarified to provide that the licenses or permits that will be revoked or suspended for a company found to have violated the law will be specific to the business location where the unauthorized alien(s) performed work; and
The Arizona Attorney General will publish a list of employers from the state that are registered for E-Verify and publish it on the Attorney General's website.
Mississippi: On March 17, 2008, with the enactment of SB 2988, Mississippi became the second state to require all employers to enroll in E-Verify. The statute has a rolling implementation schedule. State and local government agencies, companies contracting with state and local governments, and all employers with 250 or more employees will be required to begin using the program no later than July 1, 2008. By July 1, 2011, all employers in the state will be required to use the program. For public contractors the provisions do not apply to contracts entered on or before January 1, 2008. Any employer who violates the E-Verify requirements will be subject to the cancellation of any state or public contract (resulting in ineligibility for future contracts for up to three years) and may also lose any license or permit granted by state or local governments for the right to do business in the state for up to one year. Public contractors may also be liable for any additional costs or losses incurred by state agencies as a result of cancelled contracts or the loss of a license to do business in the state.
Utah: On March 13, 2008, the state enacted SB 81, which will require public contractors to enroll in E-Verify to verify the employment eligibility of new hires. The statute requires that all public contractors begin using a status verification system to verify the employment eligibility of new hires by July 1, 2009. Beginning on that date, a contractor must register for and participate in a "status verification system" in order to enter into a contract with a state or local government agency. SB 81 defines the term "status verification system" to include both the E-Verify program and the Social Security Number Verification Service (SSNVS) program operated by the Social Security Administration (SSA). Under the Utah statute, public contractors would have the choice of using either system. However, employers should exercise caution before choosing to use SSNVS because using the system, in an attempt to verify immigration status, may in fact conflict with SSA's own rules regarding the use of the program.
Rhode Island: On March 27, 2008, Governor Carcieri issued Executive Order 08-01. The Executive Order requires the state Department of Administration to require all persons and businesses, including grantees, contractors, and their subcontractors and vendors doing business with the state to enroll in and use E-Verify.
Minnesota: Governor Pawlenty issued Executive Order 08-01 on January 7, 2008. The Executive Order requires the Commissioner of Administration to develop procedures to ensure that state contracts in excess of $50,000 are given to vendors who are in full compliance with federal employment verification laws. This includes a requirement that vendors and subcontractors must certify that as of the date services are being performed they are utilizing E-Verify for all newly hired employees in the U.S. who will perform work on behalf of the state.
USCIS Announces E-Verify Improvements
On May 5, 2008, U.S. Citizenship and Immigration Services (USCIS) announced a number of improvements to the E-Verify program. The program enhancements are aimed at improving the accuracy of the databases utilized by the program to reduce the number of mismatches reported by the program for work- authorized employees. Several of the changes will be targeted particularly at improving the system's results for naturalized citizens. Currently, naturalized U.S. citizens suffer the highest rate of false mismatch in the program because of delays in updating the Social Security Administration's databases to reflect the change in citizenship status. E-Verify will now include naturalization data, and naturalized citizens who receive an initial negative response from the system will now be able to resolve the issue by calling USCIS in addition to making a personal visit to a local Social Security Administration office to resolve the discrepancy. USCIS has also indicated that the system will now receive real time updates of arrival data from the Department's border enforcement systems. This will enable the program to verify more accurately the employment eligibility of new hires who have recently been admitted to the U.S.