DHS/USCIS has just issued a Supplemental E-Verify Guide for Federal Contractors as well as a Press Release reminding employers that E-Verify Federal Contractor Rule (“FAR”) is effective September 8, 2009.
1. Certain federal contractors are required to enroll in and use the E-Verify system to verify Forms I-9 employment authorization of new hires and of employees assigned to federal contracts. This Rule amends the Federal Acquisition Regulations (“FAR”).
2. FAR does not apply to existing contracts. It only applies to qualifying acquisition contracts awarded on or after September 8, 2009 and certain indefinite-delivery/indefinite-quantity contracts modified after September 8, 2009.
3. FAR only applies if the contract contains language specifically requiring participation in E-Verify. The FAR E-Verify requirement only applies to contracts awarded/amended after September 8, 2009 that contain the FAR E-Verify clause. FAR E-Verify refers to these contracts as “qualifying contracts”.
4. When a contractor wins the bid on a federal contract on or after September 8, 2009 that contains the FAR E-Verify clause, the contractor is now required to enroll in the E-Verify program within 30 calendar days of the contract award date.
5. After enrollment, there is a 90-day phase-in period for the contractor to begin verifying both new and current employees under E-Verify.
6. The FAR E-Verify clause is included only in prime federal acquisition contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).
7. Subcontractors must also comply use E-Verify where such contracts flow from a prime contract that includes the E-Verify clause if those subcontracts are for services or for construction with a value over $3,000.
8. FAR E-Verify does not apply to contracts to be performed outside the United States, or for acquisition of commercially available off-the-shelf items.
9. FAR E-Verify does not extend to federal grants and cooperative agreements.
10. Federal contractors with qualifying contracts are generally required to E-Verify the employment eligibility of all new hires, whether they will work under the contract or not, as well as all employees assigned to the federal contracts.
11. Only those employers that have covered federal contracts that contain the E-Verify Clause may use E-Verify for existing employees.
12. Certain contractors (institutions of higher education, state and local governments, governments of federally recognized Native American tribes, and sureties performing under a takeover agreement entered into with a federal agency) have the option of using E-Verify only for employees assigned to a covered federal contract.
13. FAR E-Verify allows federal contractors to choose to verify all new hires and all existing employees hired after November 6, 1986, whether or not the employee is currently assigned to a federal contract. A contractor that elects this option must initiate verifications for the contractor's existing employees within 180 calendar days of notifying DHS that they are selecting the entire workforce option. A contractor does not have to elect the 180-day option immediately. A contractor can proceed under the general requirements and then elect, at a later point in time, the option to verify the entire workforce. This provision is intended to make it easier for contractors who may find it difficult to determine which employees have been assigned to a certain federal contract or to track which employees have already been verified.
DHS issued E-Verify Supplemental Guide for Federal Contractors that provides practical guidance regarding federal contractor enrollment in E-Verify, time-lines for verification under the Rule and the 90-day phase-in, qualifying contracts and exemptions as well as prime contractor and subcontractor obligations.
The Guide is helping in providing needed guidance regarding verification of existing employees under E-Verify. The Guide explains that contractors have two options with regard to existing employees: (1) completing new I-9 Forms for existing employees subject to the E-Verify requirement under the Rule (“Option I”); or, (2) updating the existing employees’ I-9 Forms (“Option II”). Option I may not only help avoid claims of discrimination, but it may be easier because the process is the same as that for newly hired employees.
Option II may help “to avoid possible I-9 violations” but the employer must carefully determine which cases require a new Form I-9 using the detailed guidance at Section 2.2.1; that lists many situations in which an employer, even though Option II of updating is selected, will need to complete a new I-9 including, for example, if the employee: presented a List B document that did not have a photo; had a change in his or her immigration status; changed his or her name; or, presented an expired document.
As a practical matter, not only will Option I avoid claims of discrimination due to disparate treatment, but it will also likely be easier to implement than the detailed rules for updating.
Regardless of which option is used, the employer is “required to retain any previously completed Form I-9 for that employee, and the employer “will also be required to make the previous form available for inspection if it is requested by an authorized official.” Accordingly, employers are well advised not only to retain Forms I-9 consistent with regulatory guidelines, but also regularly audit existing Forms I-9. This is especially true for Federal Contractors and other employers who sign up for E-Verify because, under the Memorandum of Understanding signed to participate in E-Verify they agree to make employment records available (including new and existing Forms I-9) to the government or its agents.
Friday, September 11, 2009
Friday, September 4, 2009
Clothing Manufacturer Lays Off 1,600, One Quarter of Workers, In I-9 Audit
Clothing maker American Apparel Inc. announced it will lay off more than a quarter of its factory work force in Los Angeles amid a probe by U.S. immigration authorities -- an early indication of how the Obama administration crackdown on employers of illegal immigrants could play out.
In early July, the company announced that it had been notified by U.S. Immigration and Customs Enforcement, or ICE, that 1,600 of it is 5,600 factory employees, who are largely Hispanic immigrants, might be in the U.S. illegally. An American Apparel spokeswoman said that about 1,500 workers would be terminated in coming weeks.
American Apparel is likely to face thousands of dollars in penalties for hiring workers who weren't eligible to be employed. The government has said fines may exceed $800 per employee ($1.28 million).DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.
In early July, the company announced that it had been notified by U.S. Immigration and Customs Enforcement, or ICE, that 1,600 of it is 5,600 factory employees, who are largely Hispanic immigrants, might be in the U.S. illegally. An American Apparel spokeswoman said that about 1,500 workers would be terminated in coming weeks.
American Apparel is likely to face thousands of dollars in penalties for hiring workers who weren't eligible to be employed. The government has said fines may exceed $800 per employee ($1.28 million).DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.
Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.
I-9 compliance (and E-verify for registered employers) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".
Employer liability extends to circumstantial evidence and “constructive knowledge”.
It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.
"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.
Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.
Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.
Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world. Immigration law is a federal law practice not limited attorneys in a particular state.
Emergency Injunction Filed to Postpone Federal Contractors E-Verify Rule, FAR
The Chamber of Commerce of the USA filed a lawsuit seeking an emergency injunction of the federal contractor E-Verify requirement or FAR. The suit filed September 1st seeks the injunction pending appeal of the district court’s decision regarding delayed implementation of the Federal Contractor E-Verify Rule or FAR.
Federal Contractors Required to Use E-Verify Effective September 9th-FAR
On 9/1/09 DHS/USCIS issued an update reminding federal contractors and subcontractors that effective Sept. 8, 2009, they will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States beginning with contracts entered after September 8th and if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.
E-Verify, which compares information from the Employment Eligibility Verification Form I-9 against federal government databases to verify workers’ employment eligibility. E-Verify is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
Companies awarded a contract with the E-Verify clause on or after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States.
E-Verify, which compares information from the Employment Eligibility Verification Form I-9 against federal government databases to verify workers’ employment eligibility. E-Verify is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
Companies awarded a contract with the E-Verify clause on or after Sept. 8 will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the United States.
Company President and Supervisors Guilty of Harboring Illegal Aliens
OUCH!
Shipley Do-Nut Company president and warehouse supervisors were found guilty of “harboring” undocumented immigrants. The company was ordered to forfeit $1.334 million to ICE, remain under court supervision for 3 years, and pay a fine of $250,000.
The warehouse supervisors were fined from $1,000 to $2,000 and given 6 months probation for hiring or continuing to hire undocumented workers.
The company president was fined 6 months and given 6 months probation for continuing to hire undocumented workers.
ICE’s investigation was the result of a separate civil lawsuit alleging the company engaged in employment discrimination. That civil lawsuit prompted ICE to investigate the company's Forms I-9s. Some of the company's Forms I-9s had incorrect or even fraudulent names and social security numbers listed on them, or were based on fraudulent documents.
In April 2008 ICE raided one of the company's Houston, TX facilities and arrested of 27 undocumented foreign nationals. All of these undocumented workers were employed and housed by the company at or near its warehouse. The company maintained nine houses for such workers, which were a subject of a DOJ forfeiture notice.
Shipley Do-Nut Company president and warehouse supervisors were found guilty of “harboring” undocumented immigrants. The company was ordered to forfeit $1.334 million to ICE, remain under court supervision for 3 years, and pay a fine of $250,000.
The warehouse supervisors were fined from $1,000 to $2,000 and given 6 months probation for hiring or continuing to hire undocumented workers.
The company president was fined 6 months and given 6 months probation for continuing to hire undocumented workers.
ICE’s investigation was the result of a separate civil lawsuit alleging the company engaged in employment discrimination. That civil lawsuit prompted ICE to investigate the company's Forms I-9s. Some of the company's Forms I-9s had incorrect or even fraudulent names and social security numbers listed on them, or were based on fraudulent documents.
In April 2008 ICE raided one of the company's Houston, TX facilities and arrested of 27 undocumented foreign nationals. All of these undocumented workers were employed and housed by the company at or near its warehouse. The company maintained nine houses for such workers, which were a subject of a DOJ forfeiture notice.
DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits.
Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.
I-9 compliance (and E-verify for registered employers) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".
Employer liability extends to circumstantial evidence and “constructive knowledge”.
It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.
"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.
Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.
Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services. Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.
Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world. Immigration law is a federal law practice not limited attorneys in a particular state.
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