The Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) announced on November 19 that it would begin delivering I-9 audit notices immediately to approximately 1,000 employers across the country associated with critical infrastructure. From initial reports, it appears that the notices are primarily subpoenas for I-9 and supporting documentation.

ICE announced interim results for the 650 I-9 audits it announced in July and announced it has begun 1,000 new audits nationwide with a focus on critical infrastructure and specific leads. Meanwhile, ICE finally revealed its new schedule for assessing fines for "knowing" and paperwork I-9 violations arising from the audits. DHS also announced a plan to encourage employers using E-Verify to publicize that participation to customers.

U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, 2009, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its worksite enforcement program resources on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

Plagued by controversy and legal battles, the Department of Homeland Security (DHS) is rescinding the 2007 No-Match Rule in a regulation to be published in the October 7 Federal Register.

The Department of Homeland Security (DHS) has formally withdrawn its Social Security "no-match" regulation, promulgated back in 2007. The no-match regulation set forth a "safe harbor" for employers who receive letters from the Social Security Administration (SSA) stating that an employee's Social Security Number (SSN) does not match the agency's records. The safe harbor rule required employers to take certain steps to resolve the discrepancy within a certain period of time or face liability. Shortly after being issued in 2007, the no-match regulation was challenged in court, subject to an injunction and ultimately never implemented. As of October 7, 2009, the rule was formally rescinded.

As published in yesterday's Federal Register, the Department of Homeland Security (DHS) has officially rescinded its Social Security "no-match" regulation, which had been stalled in federal litigation and was never fully implemented. The "no-match" rule laid out mandatory procedures for employers to follow if they received Social Security Administration (SSA) no-match letters or DHS notices regarding discrepancies with an employee's name or Social Security Number. The proposed rule would have required employers and their employees to resolve the discrepancies in a very short timeframe. By following these procedures, employers could avoid the risk that a no-match letter could be used as part of any allegation that the employer had "constructive knowledge" that the employee was not authorized to work in the U.S. DHS had acknowledged that the no-match letters were often received by employers months and even years after the submission of W-2 earnings reports. DHS had also acknowledged that the discrepancies were often a result of the high percentage of inaccurate data within the SSA database. For these and other reasons, DHS issued a proposed rule rescinding the no-match regulation on August 19, 2009. The final rule published in yesterday's Federal Register adopts the proposed rule without changes and becomes effective in 30 days.

The Department of Homeland Security has published a final regulation rescinding the Bush Administration's "safe harbor" regulation from 2007 about no-match letters sent to employers from the Social Security Administration. Nevertheless, the essential, longstanding lesson of the regulation has not changed at all: completely ignoring a no-match letter could reflect "constructive knowledge" of the lack of work authorization of the affected employees.

Now, not only do all private employers with operations in certain states (Arizona, Mississippi, and South Carolina) have to use E-Verify, but also certain employers with certain federal contracts or subcontracts have to as well. Figuring out whether you are required to use E-Verify and what you need to do can prove challenging, so we've rounded up some helpful tips.

U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new method of enforcement promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its resources in the worksite enforcement program on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

First, the simple answer: employers should use the most recent Form I-9 found at www.uscis.gov/i-9. The form indicates the most recent revision date on the lower right hand corner: Rev. 08/07/09. Also acceptable is the immediately prior version of the form dated 02/02/09 on the lower right hand corner.

On November 14, 2008, the Bush Administration promulgated a final rule to amend the Federal Acquisition Regulation (FAR) to require certain federal contractors to use E-Verify. After four delays and a lawsuit filed to prevent implementation, the federal contractor/E-Verify regulation became effective on September 8.

On September 8, 2009, a Federal Acquisition Regulation (FAR) final rule (the "federal contractor rule") went into effect that requires certain federal contractors and their subcontractors to agree, through language inserted into their qualifying federal contracts, to use the E-Verify program to electronically verify the employment eligibility of certain employees. U.S. Citizenship and Immigration Services (USCIS) has recently published a new Supplemental Guide to its E-Verify User Manual for federal contractors. The guide offers important guidance and clarification on some questions that have remained unanswered since the federal contractor rule was first published. Employers are encouraged to carefully review the supplemental guide and user manual, which can be downloaded from the USCIS website at www.uscis.gov.

The U.S. Court of Appeals for the Fourth Circuit has denied an emergency injunction staying implementation of the federal contractor E-Verify rule pending appeal of the district court’s decision which rejected a claim by the Chamber of Commerce that the rule was unlawful. Chamber of Commerce of the USA v. Napolitano, No. 09-2006 (Sept. 9, 2009). The district court found the plaintiffs did not satisfy the four elements required to grant a preliminary injunction: (1) likelihood of success on the merits, (2) likelihood that the plaintiffs would suffer irreparable harm without the injunction; (3) that the balance of equities tips in the plaintiffs’ favor; and (4) that the injunction is in the public interest.

The U.S. Court of Appeals for the Fourth Circuit has denied a motion to stay implementation of the federal contractor E-Verify rule pending resolution of challenges filed by the U.S. Chamber of Commerce and several business groups. See Chamber of Commerce of the United States of Am. v. Napolitano, Case No. 09-2006 (9/9/09). Accordingly, the E-Verify rule – which took effect on September 8, 2009 – remains in effect for qualifying federal contracts and subcontracts entered into on or after that date.

On September 8, 2009 the government will begin requiring federal contractors to use E-Verify to verify the legal work status of newly-hired employees and current employees working directly on the covered federal contract. The U.S. Chamber of Commerce is seeking an emergency order from the U.S. Court of Appeals for the Fourth Circuit to delay implementation but it appears unlikely to be granted.

With numerous appeals filed, monitoring the evolving developments regarding the implementation of Executive Order 13465 requiring certain employers qualified as federal contractors to enroll in the Department of Homeland Security's employment verification system has been a full-time occupation.

E-Verify Requirement Back on Schedule for Federal Contractors/Subcontractors, Effective September 8, 2009.

The Department of Homeland Security has announced an effective date of September 8, 2009, for the rule that will mandate E-Verify use by certain federal contractors and subcontractors. E-Verify is a free Internet-based system operated by Homeland Security and the Social Security Administration that allows participating employers to use new hires' personal identification information to verify employment eligibility.

The U.S. Citizenship and Immigration Services has reminded federal contractors and subcontractors that effective September 8, 2009, they must use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.

The regulation requiring certain federal contractors to use E-Verify goes into effect on September 8, 2009. Implementation of the regulation has been delayed four times and many questions remain unanswered. A simple Q&A might be helpful to sort out exactly what this regulation means to employers.

U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the form I-9, bearing a revision date of August 7, 2009. The new form will remain valid until August 31, 2012. The current version of the I-9 form can be downloaded from our website or from USCIS.gov.

Absent a court injunction, on September 8 federal government agencies will start adding the "E-Verify Clause" to most significant acquisition contracts, requiring vendors to begin to use E-Verify within 30 days and to insert a similar clause into the vendor's contracts with its own vendors, and so forth. Given the increasing extent of the federal arm into the economy, most large institutions and many small companies will be affected. Plans should be in place and ready to implement.

U.S. Citizenship and Immigration Services (USCIS) has released the updated version of the Form I-9, Employment Eligibility Verification, which is now available on the USCIS website at http://www.uscis.gov/files/form/i-9.pdf. The revised form is dated August 7, 2009, and will expire on August 31, 2012. Employers may use Form I-9 with the revision date of either August 7, 2009, or February 2, 2009, for all new hires or re-verifications. There are no substantive changes between these two versions. Employers do not need to complete new forms for existing employees for whom an I-9 has been properly completed.

Paving the way for full implementation on September 8, 2009, a federal District Court in Maryland has dismissed a lawsuit challenging the implementation of the E-Verify rule for federal contractors. Chamber of Commerce of the USA v. Napolitano, No. AW-08-3444 (D. Md. Aug. 25, 2009). The Rule would require federal contractors to use the federal E-Verify program to verify the legal status of all new hires and certain existing employees assigned to work on federal contracts. A federal contractor will not be required to begin using E-Verify on September 8, 2009, unless it wins a new contract(s) on or after the effective date which contains the E-Verify provision or unless any of its current federal contracts are modified/amended on or after September 8 to include such a provision.

As previously reported, September 8, 2009, marks the first date that federal contractors and subcontractors will be required to begin using the federal government's E-Verify system to electronically verify the work eligibility of newly-hired employees and existing employees assigned to work on qualifying government contracts. The rule is an amendment to the Federal Acquisition Regulation (FAR), which governs the federal government's acquisition process. The one item that remained outstanding was a pending lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging the regulation.

This is a reminder that the federal contractor E-Verify rule that amends the Federal Acquisition Regulations (FAR) to require certain federal contractors and subcontractors to enroll in and use the E-Verify system is scheduled to take effect on September 8, 2009.

On the same day, ICE leadership sent mixed messages about enforcing I-9 rules. ICE's leader publicly promised more I-9 audits than the recently announced 650, with administrative fines and criminal prosecutions to follow. But ICE withdrew a "safe harbor" regulation for employers who receive a "no match" letter. Meanwhile, serious enforcement continues and the risk of noncompliance is high.

The August 19, 2009 Federal Register will contain a proposed regulation formally rescinding the DHS August 2007 no-match safe harbor rule. This move was heralded in prior statements by Homeland Security Secretary Janet Napolitano.

Implementation of the regulation requiring certain federal government contractors and subcontractors to use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has once again been delayed. Most recently scheduled to become effective on June 30, the regulation's effective date has been pushed back to September 8, 2009. The regulation was published on November 14, 2008, and was originally scheduled to take effect on January 15, 2009.

To be sure, the government has stepped up immigration enforcement in the past several months. According to government reports, Federal prosecution of immigration related crimes increased considerably during the first few months of the Obama Administration. These reports show over 9,000 new immigration prosecutions in April 2009, which represents a 33% increase from one year ago.

The Office of Management and Budget (OMB) approval for the new I-9 Employment Eligibility Verification form lists an expiration date of 06/30/2009 in the upper right-hand corner. U.S. Citizenship and Immigration Services (USCIS) issued an update on June 26 requesting that OMB extend the document approval and stating that the form may continue to be used by employers until such approval is secured.

At the same time the Department of Homeland Security (DHS) announced that the agency would follow-through on the federal contractor/E-Verify regulation, Secretary Janet Napolitano stated that DHS would be rescinding the Social Security “No-Match” regulation (see the DHS’ press release). Pro-business and pro-labor groups alike applauded the action. However, the end of the “No-Match” regulation resolves nothing for employers and seemingly returns us to a lack of clarity for employers on what steps to take when a No-Match letter is received.

On July 8, the Department of Homeland Security (DHS) issued a press release announcing the agency’s support for the delayed regulation that would require certain federal contractors to use E-Verify to check employee work authorization. After four delays in implementation, DHS Secretary Janet Napolitano confirmed the regulation will indeed become effective on September 8. Simultaneously, Secretary Napolitano announced DHS’ intention to rescind the Social Security No-Match rule, which has been on-hold for nearly two years due to litigation contesting the validity of the rule (see the article in this issue regarding the No-Match rule).

In light of the recent I-9 audit blitz conducted by U.S. Immigration and Customs Enforcement (ICE) on July 1, a review of what to expect during an I-9 audit might be instructive.

U.S. Immigration and Customs Enforcement (ICE) launched a nationwide I-9 audit initiative on July 1, issuing Notices of Inspection (NOIs) to 652 employers (see the ICE press release). This action confirms the new enforcement strategy promised by representatives of the Obama Administration. In April 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano indicated that ICE would focus its resources in the worksite enforcement program on the criminal prosecution of employers that knowingly hire illegal workers and that ICE would use all available civil and administrative tools (including civil fines and debarment) to penalize and deter illegal employment.

Department of Homeland Security (DHS) Secretary Janet Napolitano recently announced the Obama administration's plans as they relate to two regulations affecting employment eligibility verification. The administration fully reviewed the E-Verify federal contractor rule, originally signed as an executive order by former President Bush in 2008, and has now decided to move forward with its full implementation. The E-Verify program is currently due to sunset at the end of the fiscal year on September 30, 2009, although it is expected to be extended under the final version of the DHS appropriations bill. The rule itself is actually an amendment to the Federal Acquisition Regulation (FAR), which governs the federal government's acquisition process. Beginning September 8, 2009, the rule requires certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of both newly hired employees and existing employees assigned to work on government contracts. More information on the E-Verify program and the federal contractor rule can be found in our previous advisory on this topic. The amendment to the FAR is currently the subject of federal litigation, and it's not clear at this time how the DHS' announcement could affect those proceedings.

After months of deliberation on two controversial worksite immigration enforcement regulations, the Department of Homeland Security has announced it will implement the Federal Contractor E-Verify regulation, but will withdraw the Social Security No-Match regulation.

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration's support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department's intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

The Immigration and Customs Enforcement (ICE) has announced that it will begin to investigate workplaces in all 50 states to identify employers who are hiring undocumented workers. Specifically on July 1, 2009, ICE launched a comprehensive audit initiative and issued Notices of Inspection (NOIs) to 652 businesses nationwide. ICE did not issue that many NOIs in all of 2008 ICE reported that the 652 businesses that were presented with a NOI on July 1 for a Form I-9 audit were apparently selected as a result of leads and information obtained through other investigative means. The names and locations of the businesses have not yet been released.

On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the Department intends to implement a Bush-era rule mandating the use of E-Verify by federal contractors and subcontractors. Additionally, Secretary Napolitano announced that DHS is rescinding its controversial "No-Match" regulation.

DHS has announced that it will move ahead with requiring use of E-Verify for federal contractors effective September 8, 2009, but will retract the Bush Administration’s “safe harbor” regulation relating to Social Security “No-Match” letters. Some states continue to require E-Verify by state government contractors. DHS has shifted its focus from massive raids with deportations to targeted audits, fines and prosecutions of employers concerning I-9 compliance. DHS just announced audits of 652 employers. The Form I-9 version dated “2/2/09” and DHS “Handbook for Employers” have been in effect since April 3, 2009 and continue in effect despite the form’s stated expiration of 6/30/2009.

On July 8, Department of Homeland Security (DHS) Secretary Janet Napolitano announced that the Administration intends to abandon the "no match" rule and instead promote use of E-Verify. Secretary Napolitano stated that the Obama administration will endorse and support the federal contractor E-Verify regulation and continue efforts to improve the E-Verify system. This announcement is consistent with the Administration's recent emphasis upon worksite enforcement and employment eligibility verification. It is also not surprising that the Administration is willing to give up on the "no match" regulation that organized labor has so vigorously attacked.

Six hundred fifty-two employers throughout the country are receiving I-9 Notice of Inspections (NOIs) from the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) unit, the Government has announced. ICE is the federal agency responsible for investigating employers for immigration worksite violations. The NOIs require employers to provide copies to ICE of all of their employee Form I-9s and supporting documents by a specified date. In most instances, however, employers are given only three business days to present their records to the local ICE office.

U.S. Citizenship and Immigration Services (USCIS) has verified that the current version of the I-9 form, dated February 2, 2009, will remain valid beyond its June 30, 2009 expiration date. USCIS is in the process of releasing a new version of the I-9 Form. Until the new form is released, employers must continue to use the current version of the I-9 Form to confirm employees authorization to work in the United States. The current version of the I-9 Form can be downloaded from our website at www.laborlawyers.com/I-9 or from www.uscis.gov.

The U.S. Citizenship and Immigration Services (“USCIS”) has announced that the current version of Form I-9, Employment Eligibility Verification, which is set to expire June 30, 2009, can continue to be used until a new version of the form is issued. No substantive changes are expected to be made when the updated form is released.

E-Verify, the Internet-based system operated by United States Citizenship & Immigration Services (USCIS) that allows employers to verify the employment eligibility of employees, is currently voluntary at the federal level. However, certain states have acted to require some or all employers to use the system. Arizona has the most sweeping law, requiring all employers to use E-Verify.

Implementation of the regulation requiring certain federal government contractors and subcontractors to use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system has once again been delayed. Most recently scheduled to become effective on June 30, the regulation’s effective date has been pushed back to September 8, 2009. The regulation was published on November 14, 2008, and was originally scheduled to become effective on January 15, 2009. This is the fourth time implementation of the regulation has been delayed.

Implementation of the new mandatory E-Verify rule for federal contractors was set to go into effect on June 30, 2009. However, the implementation date has once again been delayed. The new date is now September 8, 2009. This is the fourth time that the effective date of this rule has been postponed. The delay was sought by the Obama administration to enable them to have more time to review the rule before it takes effect.

The applicability date of the rule requiring federal government contractors and subcontractors to begin using the USCIS E-Verify system has been delayed for the fourth time, until September 8, 2009. The federal agencies responsible for implementing the rule published an amendment in the June 5, 2009 Federal Register postponing the applicability date of the final rule. The rule requiring federal contractors and subcontractors to electronically verify the employment eligibility of their employees was first published on November 14, 2008, and was set to become effective on January 19, 2009, but has since been postponed four times.

The federal government has decided to postpone from June 30 until September 8, 2009, implementation of the E-Verify requirement for federal contractors, marking the fourth delay since the final rule was issued more than six months ago.

The federal government is expected to publish a notice in the Federal Register early next week that will further delay implementation of the E-Verify requirements affecting federal contractors. The final rule will require certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of their newly hired employees and existing employees assigned to work on government contracts. The rule, set to go into effect on June 30, 2009, will be further suspended until September 8, 2009. This is the fourth time the rule has been delayed from its original January 15, 2009, effective date.

The effective date of the Federal Contractor E-Verify Rule has been postponed once again. The new implementation date is now scheduled to be September 8, 2009, (extended from the most recent scheduled implementation date of June 30, 2009) and is the result of an agreement between the parties to the lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging the rule.

In the past several years, businesses in the hospitality industry have particularly borne the brunt of increased federal enforcement of the nation's immigration laws. Through high-profile tactics including raids of businesses large and small, the previous administration put employers on notice that hiring unauthorized workers could result in million dollar fines, jail time for company owners, and months of damaging press coverage.

Constangy partner Penni Bradshaw is a member of the U.S. Chamber of Commerce's Immigration Sub Committee. We are forwarding to you communication from the Chamber's Executive Director of Immigration Policy so that you may be informed of the latest from Capitol Hill. As always, Constangy will keep you informed immediately as news hits. If you have questions or concerns, feel free to contact any Constangy attorney.

Ogletree Deakins will continue to provide updates and reminders on significant changes in immigration compliance on a regular basis. With all of the changes, stops, starts, delays and new rules, it is difficult to recall what changes are effective, which ones have been discontinued and which ones are soon to become effective. Below is a status report on significant compliance developments:

When comprehensive immigration reform at the federal level stalled, many state governments decided to take matters into their own hands. Since 2006, many states have enacted laws which provide for employer sanctions related to hiring unauthorized workers – independent of any monetary or criminal sanctions available for federal immigration violations.

The regulation requiring certain federal contractors to use E-Verify is once again being delayed from May 21 until June 30. A notice was published in the Federal Register on April 16 confirming the delay. This is the third delay in implementation of the rule which was originally expected to be effective on January 15, 2009. E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The rule would require participation in E-Verify by certain federal contractors and their subcontractors.

Update on Federal Contractor Regulations Requiring E-Verify.

REMINDER: All U.S. Employers Must Use New I-9 Form Effective April 3, 2009.

New Form I-9 Employment Eligibility Verification.

The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until June 30, 2009. The rule will only affect federal contractors who are awarded a new contract after May 21, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704). Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify Clause.

The federal government has decided to postpone until June 30, 2009, implementation of the E-Verify requirement for federal contractors, marking the third delay since the final rule was issued a little more than five months ago.

The applicability date of the rule requiring federal government contractors and subcontractors to begin using the USCIS E-Verify system has been delayed for the third time, until June 30, 2009.

E-Verify is an Internet-based system operated by the Department of Homeland Security's U.S. Citizenship and Immigration Services (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers2 to verify3 electronically the identity4 and employment eligibility of their newly hired employees, regardless of citizenship. Specifically, the SSA5 will verify that the name, Social Security number, and date of birth are correct, and the DHS will verify that the employee is in an employment-authorized immigration status.

The Obama Administration has delayed yet again the start date for the requirement for federal government contractors to use E-Verify.

The federal E-Verify rule has been postponed again, until June 30, 2009. On June 6, 2008, President Bush issued an executive order directing federal agencies to require federal contractors to agree to electronically verify their employees' eligibility to work legally in the United States, and a final rule implementing the order was issued on November 14, 2008, with an effective date of January 15, 2009. The U.S. Chamber of Commerce and other business groups sued to block the rule, and on January 9, 2009, the government announced that it would postpone implementation. The Obama Administration postponed the rule again until May 21, 2009, and now it has announced that it is extending the postponement yet again until June 30, 2009.

The federal government has announced a third delay in the implementation of the Federal Contractor E-Verify Rule. The new date for implementation of the rule is now June 30, 2009.

The U.S. government has published a notice in the Federal Register today further delaying implementation of a final rule that would have required certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of their newly hired employees and existing employees assigned to the contract. The rule, set to go into effect on May 21, 2009, is now further suspended until June 30, 2009. This is the third time the rule has been delayed from its original January 15, 2009, effective date.

Just when you thought you finally understood the I-9 form that went into effect in 2007, the U.S. Citizenship and Immigration Services (“USCIS”) produced a new form—one that went into effect on April 3, 2009.

This is a reminder that effective today (April 3, 2009) employers must use the revised I-9 form. As discussed in prior Legal Alerts, U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the Form I-9.

Effective today, April 3, 2009, all employers must use a newly revised Form I-9, Employment Eligibility Verification, for all new employees and for re-verification of certain employees with temporary work authorization.

Starting April 3, 2009, employers must use the new version of the Department of Homeland Security's Form I-9, Employment Eligibility Verification (Rev. 02/02/09). The Department of Homeland Security also has issued a revised Handbook for Employers to be used with the new Form I-9. The new form and handbook are available on the I-9 Compliance page of the Fisher & Phillips website. The new Form I-9, among other things, narrows the list of acceptable documents to show identity and work authorization and eliminates the use of expired documents. Please view our January 20, 2009 Legal Alert for a detailed description of the proposed changes. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1986 to show that the employee is authorized to work in the United States. Additionally, the employer must re-verify documents for any employees whose work authorization documents are expiring.

Following a brief moratorium, the new I-9 form goes into effect on Friday, April 3, 2009. Old versions of the I-9 form should be discarded and the new form should be put into immediate use. The I-9 form and its instructions can be found at the following link: http://www.uscis.gov/i-9.

Employers must begin using a new Employment Eligibility Verification Form (Form I-9) effective today, April 3, 2009. The new form was originally scheduled to be required on February 2, but U.S. Citizenship and Immigration Services (USCIS) delayed implementation until April 3. The new Form I-9, which can be found on the agency’s website, is dated 02/02/2009 on the lower right hand corner. USCIS also released a new Handbook for Employers that has been modified to reflect changes made to the new Form I-9 and corresponding regulations.

The world of immigration compliance continues to be a moving target for employers. In recent months, stricter state and federal government compliance provisions have been initiated, though the implementation of several of these measures has been delayed. A new Employment Eligibility Verification Form (Form I-9) was finalized in December, and then implementation was delayed from February to April (see the January 2009 issue of the Immigration eAuthority). A regulation requiring certain federal contractors to use E-Verify was published in November and then delayed twice and now is scheduled to be effective on May 21 (see Ogletree Deakins’ November 14, 2008 E-Alert). Several states have acted to require employers to use E-Verify, the Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of newly-hired employees. Arizona requires all employers to use E-Verify, while the other states typically require certain employers with state government contracts to use the electronic verification system.

The implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9) is scheduled to go into effect on April 3. The new form was originally scheduled to be required on February 2, but U.S. Citizenship and Immigration Services (USCIS) delayed implementation until April 3.

The new Form I-9 (revision date 2/02/2009) is currently scheduled to go into effect on April 3, 2009. The new I-9 form is available on the U.S. Citizenship and Immigration Services website. The new I-9 and the interim rule creating it were originally published in the Federal Register on December 17, 2008, with a correction published on January 16, 2009. However, on January 30, 2009, the U.S. Department of Homeland Security (DHS) announced that implementation of the new I-9 would be postponed until April 3, 2009. Notice of the delay appeared in the February 3, 2009 edition of the Federal Register.

U.S. Citizenship and Immigration Services (USCIS) issued a press release on January 30 delaying the implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9). The new form was originally scheduled to be required on February 2, 2009. USCIS instead reopened the comment period on the new regulation through March 4 and currently plans to implement the new form and corresponding documentary changes on April 3. For an overview of the changes to the I-9 process contained in the original regulation, see the January 2009 issue of the Immigration eAuthority.

U.S. law requires that every employer complete Form I-9, Employment Eligibility Verification (“I-9 Form”), for each new employee within three days of hire. At this time, the employee is required to present original documents that demonstrate both identity and authorization to work in the United States.

USCIS made an announcement on Friday, January 30, that the Obama Administration has delayed the effective date of the new Form I-9 from February 2 for 60 days, until April 3. Employers must keep using the old form until then.

We previously reported to you (January 2009 Compliance Matters) that the U.S. Citizenship and Immigration Services (USCIS) issued a revised Form I-9 that must be used for all new hires, beginning February 2, 2009. However, on January 31st, the U.S.C.I.S. announced that it will delay implementation of the new Form I-9 until April 3, 2009.

E-Verify enrollment for federal contractors has been postponed. On January 20, 2009, Rahm Emanuel, President Barack Obama’s Chief of Staff, issued a memorandum to all executive departments and agencies that urged extending the effective date of the E-Verify rule for 60 days.

On January 30, 2009, the United States Citizenship and Immigration Services (USCIS) announced a delay in implementation of a new Form I-9. The Form I-9 is a form that employers are required to complete for all newly hired employees to verify their identity and eligibility to work in the United States. The new Form I-9 had been scheduled to become effective for use beginning today, February 2, 2009. However, employers should delay any plans they had to begin using the new Form I-9 until further word from USCIS, because use of the new Form I-9 before it is effective may result in monetary penalties.

As global mobility continues to become a central part of business activity today, it is increasingly important for businesses to develop policies that ensure compliance with immigration standards. In the United States, immigration enforcement actions have increased greatly, with news headlines regularly featuring worksite raids and investigations instigated by Immigration and Customs Enforcement (ICE). These reports are not only of administrative actions for immigration violations but also of criminal charges brought against owners, managers, supervisors, and human resource employees. Charged offenses include such things as harboring, knowingly hiring illegal aliens, smuggling, document fraud, money laundering, and worker exploitation. In fiscal year 2007 alone, ICE made 863 criminal arrests and brought 4,077 administrative charges as a result of worksite enforcement investigations.1 In the past fiscal year (FY2008), ICE made approximately 1,101 criminal arrests and more than 5,173 administrative arrests.

As stated in our prior Legal Alert, USCIS has delayed implementation of the revised I-9 Form, which narrows the list of documents employers may accept to verify employment authorization. Implementation of this form has been delayed until April 3, 2009. Employers should not use the new form until USCIS officially implements it, but instead should continue to use the current versions of the I-9 form, dated June 5, 2007 and June 16, 2008.

USCIS has announced that it will delay implementation of the new I-9 form until April 3, 2009. USCIS issued an interim final rule in December 2008, which amended its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the I-9 form and included a new I-9 form.

The Department of Homeland Security announced a delay in the implementation of the newest version of Form I-9, which was due to become effective today. In a last minute announcement issued on January 30, 2009, the Department postponed implementation of the new form until April 3, 2009. The administration will be considering public comments on changes to the form and may further delay its effective date. Until further notice, employers should continue using the June 5, 2007 version of Form I-9. The current version of Form I-9 can be downloaded from the I-9 Compliance section of the Fisher & Phillips website.

On Friday, January 30, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that it would delay the implementation of an interim final rule that would have required employers to begin using a new version of Form I-9 to verify the identity and work authorization of their newly hired employees as of February 2, 2009, as we reported previously. The rule also outlines new verification guidelines and provides a redefined list of acceptable proof of identification documents. Implementation of the rule will now go into effect on April 3, 2009. USCIS has also reopened the public comment period for 30 days, until March 4, 2009.

Once again, the effective date of the new rule that will mandate E-Verify use by certain federal contractors and subcontractors has been postponed.

The Department of Homeland Security (DHS) announced January 30, 2009, it is postponing the proposed February 2, 2009, effective date of the new Form I-9 rule to April 3, 2009. In addition, DHS re-opened the comment period on the proposed new form for 30 days. The public may submit comments on or before March 4, 2009.

On January 30, U.S. Citizenship and Immigration Services (USCIS) issued a press release announcing that it was delaying implementation of the regulation requiring employers to use a new Employment Eligibility Verification Form (Form I-9). The new form was originally scheduled to be required as of February 2. USCIS has reopened the comment period on the new rule through March 4 and currently plans to implement the new form and corresponding documentation changes on April 3.

New rules were scheduled to go into effect on January 15, 2009 that would require most federal government contractors to use E-Verify, an electronic employment eligibility verifi cation system operated by the U.S. Department of Homeland Security.

New Form I-9 Employment Eligibility Verifi cation.

United States law requires that every employer complete Form I-9, Employment Eligibility Verifi cation (“I-9 Form”), for each new employee within three days of hire.

Are you ready? As far as we know at this time, starting next Monday (February 2, 2009), the new I-9 form will be the only version that employers will be allowed to use. The new form is available now, and here is a summary of the most important changes:

The federal government has agreed to delay the implementation of the Federal Contractor E-Verify Rule until at least May 21, 2009. This is the second delay. Previously, the federal government decided to postpone the implementation of the rule until February 20 following a lawsuit filed by the U.S. Chamber of Commerce and other groups.

The U.S. Chamber of Commerce announced on January 27, 2009, that an agreement had been reached with the Department of Homeland Security to delay the implementation date of the modified E-Verify/Basic Pilot Program to May 21, 2009. In addition, the Department of Homeland Security has asked that proceedings challenging the modified E-Verify/Basic Pilot Program be halted in order to allow the Obama Administration to review the modified rule.

Effective February 2, 2009, employers must use the newest version of Form I-9 which has been revised. Employers will be required to use the revised form for all new hires and to reverify any employee with expiring employment authorization. As of February 2, 2009, the current edition of the Form I-9, dated 06/05/2007, will no longer be valid. The revised Form I-9:

On Tuesday, January 27, 2009, the Department of Justice agreed to further delay the implementation of a final rule that would have required certain federal contractors and their subcontractors to use the E-Verify program and electronically verify the work eligibility of their newly hired and existing employees assigned to the contract. Implementation of the rule, originally set to go into effect on January 15, 2009, and then suspended until February 20, 2009, is now further suspended until May 21, 2009.

The final rule requiring federal contractors to begin using E-Verify by January 15, 2009, has been suspended until February 20, 2009.

As discussed in our prior Legal Alert, U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the I-9 form.

Employers are reminded that they will be required to use a new version of Form I-9, which becomes effective February 2, 2009, to verify the identity and work authorization of their newly hired employees.

Beginning February 2, 2009, employers must use a new Form I-9 for all new hires and to reverify any employee with expiring employment authorization. Employers using the previous June 5, 2007 edition or earlier editions of the Form I-9 after February 2, 2009 may be subject to fines. Between now and February 2, you should continue to use the June 5, 2007 edition of the Form I-9.

The U.S. Citizenship and Immigration Service’s (USCIS) interim final rule published in the Federal Register on December 17, 2008, is the agency’s latest effort tostreamline and improve the integrity of the Employment Eligibility Verification (Form I-9) process so that individuals who are not authorized to work are prevented from obtaining employment in the United States. USCIS also has issued a revised Form I-9, Employment Eligibility Verification, which will become effective on February 2, 2009. The publication of the interim final rule and release of a revised Form I-9 comes approximately one year after USCIS last updated the Form I-9 in November 2007.

In what may signal the end of the Bush Administration’s tough approach against U.S. employers on immigration matters, the Department of Homeland Security agreed to delay implementation of its federal contractor E-Verify regulation to February 20, 2009. The E-Verify rule that was scheduled to take effect January 15th ultimately would have required an estimated 168,000 federal contractors to register with and use DHS’ E-Verify system to verify the identity and employment authorization of their new hires and certain current employees.

In response to a legal challenge by business groups, the federal government has announced that it will postpone the effective date of its new rule requiring federal contractors and subcontractors to use E-Verify.

U.S. Citizenship and Immigration Services (USCIS) has published an interim final rule that narrows the list of documents employers may accept to verify employment authorization on the I-9 form. The revised Form I-9 becomes effective on February 2, 2009. At that time, employers will be required to use only the new form to verify the employment eligibility of new hires and reverify existing employees where necessary.

The government has agreed to delay temporarily the implementation of the requirement that federal contractors and subcontractors with qualifying federal contracts use the U.S. Citizenship and Immigration Services (USCIS) E-Verify system to check the immigration status of their employees. The requirement was scheduled to take effect January 15, but the government has delayed its implementation until February 20, 2009.

The Department of Homeland Security (DHS) announced the implementation of the regulation requiring certain federal contractors to use E-Verify will be postponed from January 15 to February 20. E-Verify is the Internet-based system operated by DHS in cooperation with the Social Security Administration that allows participating employers to electronically verify the employment authorization of newly-hired employees. The final regulation requires certain federal contractors to use E-Verify for new hires and to reverify existing employees working on covered contracts.

On January 9, 2009, the federal government agreed to suspend the implementation of the E-Verify Federal Contractor Rule until February 20, 2009. The E-Verify Federal Contractor Rule was due to take effect on January 15, 2009, but the government agreed to delay implementation after the U.S. Chamber of Commerce, along with other business groups, filed a lawsuit on December 23, 2008 challenging the legality of this law. A notice announcing the suspension is scheduled to be published in the Federal Register this week.

On Friday, January 9, the Department of Justice agreed to delay implementation of a final rule that would have required certain federal contractors and their subcontractors to begin using the E-Verify program to electronically verify the work eligibility of their newly hired employees and existing employees assigned to the contract. The rule, originally set to go into effect on January 15, 2009, will be suspended until February 20, 2009.

The Department of Homeland Security has announced that the effective date of the new rule that will mandate E-Verify use by certain federal contractors and subcontractors has been delayed from January 15, 2009 to February 20, 2009.

On January 15, 2009, new rules will require most federal government contractors to use E-Verify, an electronic employment eligibility verifi cation system operated by the U.S. Department of Homeland Security. E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verifi cation Program) allows employers to electronically confi rm the biographical data of employees pursuant to a Memorandum of Understanding (“MOU”) entered into between the employer, the U.S. Department of Homeland Security (“DHS”) and the Social Security Administration (“SSA”).

On January 9, 2009, Angelo I. Amador, Director of Immigration Policy for the U.S. Chamber of Commerce, announced an accord reached with the federal government to delay the effective date of the E-Verify federal contractor regulation until February 20, 2009 – adding 36 days to the original deadline of January 15, 2009.1 Employers everywhere are breathing a collective sigh of temporary relief, and some are wondering whether this deadline extension will put the E-Verify Executive Order on President-Elect Obama's rescission list, as the effective date has now been moved to after his Inauguration.

Several organizations, including the U.S. Chamber of Commerce, the Society for Human Resource Management and Associated Builders and Contractors, Inc., have joined suit against Department of Homeland Security (DHS) Secretary Michael Chertoff and the U.S. federal government in an attempt to halt a new DHS final rule that goes into effect on January 15, 2009. The rule requires federal contractors and their subcontractors to enroll in and use the E-Verify program to verify the work eligibility of their new employees as well as those employees already working on government contracts.

On December 18, 2008, the U.S. Citizenship and Immigration Services (USCIS) announced sweeping changes to the Form I-9 used in the employment verification process. As a result, employers must begin using the new Form I-9 for all new hires and re-verifications occurring on or after February 2, 2009.

Under a new rule passed by the Bush administration, larger federal contractors and sub-contractors will now be required to use the federal government's E-Verify system to determine whether the employees working on the contracts are authorized to work in the United States. The rule will also require the contractor to use the E-Verify system on all new hires, including employees who are not directly working on the covered contract.

Effective February 2, 2009, USCIS has amended the I-9 rules concerning the boxes a worker must check about status and concerning what documents an employer can and must accept from workers to verify their identity and employment authorization at the time of hire. The new I-9 will split the box to assert citizenship or nationality into two boxes. Expired documents are no longer acceptable for any purpose. In addition, USCIS has added some documents to and removed other documents from the list.

On December 17, 2008, the USCIS interim final rule to streamline the Employment Eligibility Verification (Form I-9) process was published in the Federal Register. Employers must begin using this new version of the form on February 2, 2009. The form will be available on the USCIS website (http://www.uscis.gov) before that date.

The U.S. Citizenship and Immigration Services (USCIS) announced on December 15, 2008, that it submitted an interim final rule to the Federal Register revising form I-9 used in the employment verification process.

On June 11, 2008, Baker Hostetler issued an Executive Alert advising of a proposed rule requiring federal contractors to begin using the E-Verify employment eligibility verification system to confirm the employment eligibility of certain parts of their workforce. Recently, a final rule was published that will mandate E-Verify use by certain federal contractors and subcontractors beginning January 15, 2009.

U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule to revise Form I-9, Employment Eligibility Verification. The rule narrows the list of acceptable identity and employment authorization documents, requires employers to accept only unexpired documents, and makes several technical changes. The rule and the revised Form I-9 will be published in the Federal Register soon and will take effect 45 days after publication.

The U.S. District Court for the Northern District of California has denied the Department of Homeland Security’s request to expedite consideration of its Supplemental Final Rule on Social Security no-match letters, effectively blocking implementation of the safe harbor rule until next year.

Starting January 15, 2009, certain federal contractors and subcontractors will be required to begin using the E-Verify system administered by the U.S. Citizenship and Immigration Services (USCIS) to verify the eligibility of their employees to legally work in the United States. The final rule implementing the requirement was published on November 15 in the Federal Register.

The Department of Homeland Security (DHS) published its final rule making employers accountable for resolving mismatched social security numbers of employees. The regulation, “Safe Harbor Procedures for Employers who Receive a No-Match Letter,” describes the legal obligations of an employer when the employer receives a no-match letter from the Social Security Administration (SSA) or notice from the Immigration and Customs Enforcement (ICE), the internal investigative arm of DHS. It establishes “safe-harbor” procedures that the employer can follow in response to such a letter or notice to avoid being imputed with constructive knowledge that an employee targeted in a no-match letter is a person not authorized to work in the United States.

The Labor Department's Office of Federal Contract Compliance Programs (OFCCP) issued a directive on October 2, 2008, effective immediately, regarding inspection procedures for OFCCP compliance officers (COs). The directive applies to reviews of Forms I-9 during an on-site compliance review.

In June of this year, President Bush amended Executive Order 12989, directing federal contractors to use the E-Verify system to ensure that all new hires and employees working on government projects are eligible to work in the United States. Today, the federal government issued the Final Rules implementing the E-Verify requirement.

A final rule just published in the Federal Register amends the Federal Acquisition Regulation (FAR) to require certain federal contractors and sub-contractors to use the E-Verify system. All federal solicitations issued and contracts awarded after January 15, 2009 will include a clause related to the new rule.

Certain federal contractors will be required to use E-Verify to confirm the identity and work authorization of all employees working on federal contracts beginning January 15, 2009, according to the Final Rule published November 14, 2008 amending the Federal Acquisition Regulation (FAR). The Rule will affect approximately 168,324 federal contractors and 3.8 million employees in the United States.

Effective January 15, 2009, certain federal contractors and subcontractors will be required to use U.S. Citizenship and Immigration Services' (USCIS) electronic employment eligibility verification system, E-Verify, to verify the employment eligibility of their workforces. A final rule was published in the November 14, 2008, Federal Register amending the Federal Acquisition Regulation (FAR) and implementing President Bush's Executive Order 12989 signed on June 6, 2008.

On November 14, 2008, the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a final rule requiring certain federal government contractors to use the E-Verify system to confirm their employees' eligibility to work in the United States. The rule will be effective January 15, 2009. The final rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008.

President George W. Bush has signed a short-term continuing resolution (H.R. 2638) to extend the E-Verify program through March 6, 2009, and inject $100 million in new funding for the program until then. The program had been scheduled to sunset on November 29, 2008.

The Department of Homeland Security (DHS) announced that it will publish a supplemental final No-Match Safe Harbor regulation that sets forth the same safe-harbor procedures contained in the August 2007 regulation enjoined by the U.S. District Court for the Northern District of California. It is the position of DHS that the preliminary injunction does not prohibit further rulemaking. The DHS asserts that it has fully addressed the court's concerns about the implementation of the 2007 rule. The final rule takes effect immediately upon publication in the Federal Register.

The Department of Homeland Security (DHS) has issued a Supplemental Final Rule (SFR) addressing procedures employers may follow when they receive either a no-match letter from the Social Security Administration (SSA) (which states that there is a discrepancy between the Social Security Number (SSN) reported for the employee and the SSA's records) or a notice of suspect document from DHS. The SFR makes no substantive changes to the provisions of the Final Rule published by DHS in August 2007. Instead the SFR addresses the issues raised by a federal court in California, which previously enjoined enforcement of the August 2007 Final Rule. The rule has not gone into effect yet and will not become effective until the court lifts the injunction. For now, employers who receive no-match letters must continue to correct their records and ask employees to correct the problem where applicable, within a reasonable time. Thus, the status quo continues without specific time periods or a safe harbor for employers to deal with no-match letters.

On October 23, 2008, the Department of Homeland Security (DHS) released its supplemental final No-Match Letter Rule and announced that it will take effect immediately upon publication in the Federal Register on a not yet scheduled date. The supplemental final rule does not substantively change the safe harbor procedures described in the rule as originally written and issued in August 2007 or as supplemented in March 2008. The DHS will seek to lift the preliminary injunction imposed by Judge Charles Breyer of the Northern District of California in October 2007. Once the injunction is lifted, employers who receive No-Match letters issued by the Social Security Administration (SSA) but follow the safe harbor procedures described in the No-Match Letter Rule, will be sheltered from a charge of constructive knowledge that the individual named in the letter was not authorized to work in the United States. DHS takes the position that its supplemental final rule addresses the issues raised by Judge Breyer and if the injunction is lifted, will take immediate steps to implement the rule. Judge Breyer has rescheduled a status conference in the case from October 31 to November 21, 2008.

The Department of Homeland Security (DHS) has issued a Supplemental Final Rule for its “no-match” rule, which requires employers to resolve discrepancies between employee Social Security numbers and Social Security Administration (SSA) records. The 100-page Supplemental Final Rule, released on October 23, essentially reiterates the substantive requirements of the Final Rule issued in 2007.

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) issued a directive on October 2, 2008, effective immediately, regarding inspection procedures for an OFCCP compliance officer (CO) when reviewing Forms I-9 during an on-site compliance review.

Employers are scratching their heads wondering whether to use E-Verify. While it typically is a case-by-case decision that can be affected by a multitude of factors, here is a partial list of key employer considerations regarding the use of E-Verify.

Various states have passed legislation or issued Executive Orders mandating E-Verify participation for public employers, state government contractors, or even all employers in the state. The court decision upholding Arizona’s law requiring all employers to use E-Verify strongly suggests these state efforts will be found valid. Here are updates on developments over the past month:

The Social Security Administration (SSA) has general authority and responsibility to maintain reported earnings for individuals and use those reports to determine entitlement to various benefits. Many employers are familiar with the current litigation pending in the U.S. District Court for the Northern District of California regarding the no-match letters and regulations. (See Littler's July 2005 National ASAP, DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging) In August 2007, the Department of Homeland Security (DHS) tried to bootstrap its new final Rule (See August 2007 ASAP, DHS Publishes Final "Safe-Harbor" Procedures for Employers Who Receive SSA "No-Match" Letters and DHS Notices) by having the SSA send out an announcement with the SSA's annual no-match letters to employees and employers. A TRO and later an injunction regarding the DHS Rule has kept SSA from sending further dual purpose announcements.

After the enforcement sweep at Howard Industries, a Laurel, Mississippi, manufacturer, resulted in the arrest of almost 600 workers, no one can doubt the U.S. Department of Homeland Security (“DHS”) and Immigration and Custom Enforcement (“ICE”) are committed to policing immigration laws aggressively in the workplace.

On August 8, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that the new U.S. Passport Card may be used for employment eligibility verification purposes. The Passport Card is considered a valid “List A” document that may be presented by newly hired employees during the I-9 employment eligibility verification process. As the document contains a photo and verifies both the identity and work authorization of the card holder, it can singularly satisfy the employee’s I-9 documentation requirements and also can be accepted by employers participating in E-Verify. For more information, see the USCIS press release.

E-Verify, the voluntary electronic employment verification system operated by U.S. Citizenship and Immigration Services (USCIS), has been at the center of efforts to improve the employment eligibility verification system and enhance worksite enforcement efforts. In 1996, Congress introduced the Basic Pilot Program, the predecessor to the current E-Verify, as part of the Illegal Immigration Reform and Immigrant Responsibility Act. Current authorization and funding for E-Verify is set to expire on November 1, 2008. On July 31, the House of Representatives passed a bill (H.R. 6633) that would extend E-Verify for five years. The bill has moved to the Senate for consideration where competing bills have also been introduced, including one that would make E-Verify permanent and another that would recapture immigrant visas (green cards) that were authorized but went unused between 1992 and 2007.

U.S. Citizenship and Immigration Services (USCIS) has announced that the new U.S. passport card may be used as a valid "List A" document to complete Form I-9 during the employment eligibility verification process to prove both identity and work authorization, including for E-Verify participants. The U.S. Department of State began producing passport cards on July 14, 2008, and has already received more than 350,000 applications.

South Carolina has become the most recent state to require employers to use a federal work verification program to verify employees' legal status. South Carolina Governor Mark Sanford recently signed into law "The South Carolina Illegal Immigration Reform Act," which requires both private and public employers to register and participate in a federal work verification program, such as E-Verify, the online employment eligibility verification program operated by the U.S. Department of Homeland Security. The new law also prohibits state employers from awarding contracts or subcontracts to employers who fail to use federal work verification programs. The new law also provides for strict penalties against employers who "knowingly or intentionally" employ any unauthorized workers. The penalties include monetary fines, suspension, and even permanent revocation of the ability to employ workers in South Carolina.

On June 26, 2008, U.S. Citizenship and Immigration Services withdrew the June 16, 2008 version of Form I-9 and reinstated the June 5, 2007 version, but with a new expiration date of June 30, 2009. Employers should start using the June 5, 2007 version with the June 30, 2009 expiration date immediately. Other than the revision date, there are no differences between the two June 2007 versions. The form is available at http://www.uscis.gov/i-9.

Missouri joined the growing list of states that have passed immigration measures impacting employers. Governor Matt Blunt signed House Bill 1549 which will require (as of January 1, 2009) the following entities to participate in a federal work authorization program (currently known as “E-Verify”): any public (government entity) employer and any business entity that applies for a contract or grant in excess of $5,000 with the state of Missouri or one of its political subdivisions or applies for a tax credit, tax abatement, or loan from the state of Missouri. Although private employers are not required to participate in E-Verify, the law encourages them to do so. For a complete summary of the law, see the July 8 Missouri eAuthority.

It has been a busy twelve months for employment-related immigration issues. Employers have watched as the Department of Homeland Security (DHS) announced safe harbor rules to guide employers upon receipt of no-match letters from the Social Security Administration (SSA), a California federal district court prohibited the implementation of those rules, and, finally, DHS recently re-issued the rules to comply with the district court's ruling. Just when it appeared that some clarity may be arising from the confusion, however, employers must now consider how to respond to the U.S. Court of Appeals for the Ninth Circuit's decision in Aramark Facility Services v. Service Employees Int'l Union Local 1877, No. 06-56662 (9th Cir. June 16, 2008). That decision raises the stakes for all employers, and especially unionized employers.

The Federal Acquisition Regulation Counsel (FAR Counsel) issued a proposed rule to implement the President's admendments to Executive Order 12989. Comments to the proposed rule are due August 11, 2008.

On June 6, 2008, President Bush issued Executive Order 12989 ("EO 12989"), directing all federal departments and agencies to require federal contractors to use the government's E-Verify Program. Pursuant to EO 12989, all federal contractors must verify the employment eligibility of all new hires and current employees assigned to work on future federal contracts. E-Verify is the web-based program operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration that allows employers to verify the work authorization of new employees. Federal contractors who refuse to use E-Verify will be deemed ineligible to do business with the federal government. EO 12989 also instructs federal agencies not to do business with federal contractors who "knowingly employ unauthorized alien workers."

On June 16, 2008, USCIS released a new I-9 Employment Eligibility and Verification Form, with an expiration date of June 30, 2009. All U.S. employers are responsible for completion and retention of I-9 forms for each individual hired for employment in the U.S., including both citizens and non-citizens. On the I-9 form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9.

On June 6, 2008, President Bush signed an Executive Order that will require all federal contractors to use the E-Verify system to confirm the lawful status of all workers assigned to work on federal projects in the United States. See Littler's June 2008 ASAP Executive Order Requires All Federal Contractors to Use E-Verify. On June 12, the government issued a proposed regulation changing the Federal Acquisition Regulation to implement the terms of the Executive Order. The proposed rule will be open for comments until August 11. After the responsible federal agencies analyze that commentary, a final rule will be published in the Federal Register, and it will likely take effect 30 days later.

The USCIS issued an updated version of Form I-9, Employment Eligibility Verification for immediate use. All employers are required to complete and retain a Form I-9 for each employee hired after November 6, 1989 to show that the employee is authorized to work in the United States.

Executive Order 12989 requires federal contractors to use E-Verify to confirm the identity and work authorization of all employees working on federal contracts. The Executive Order, signed by President George W. Bush on June 6, 2008, left open a number of questions, including, for example, whether subcontractors are covered, will the Office of Federal Contract Compliance Programs (OFCCP) have a role and are there monetary thresholds for coverage. Typically, such unanswered questions are addressed in implementing regulations. On June 9, 2008, agencies responsible for administering the Federal Acquisition Regulations sent a Notice of Proposed Rulemaking to the Federal Register, setting forth proposed implementing regulations (the "Proposed Rule").

An Executive Order signed by President George W. Bush on June 6 will require federal government contractors to use E-Verify, the electronic employment verification system operated by U.S. Citizenship and Immigration Services (USCIS).

While Congress remains unable to agree on immigration reform, the Executive Branch has acted (see article above) and individual states continue to move forward with immigration legislation of their own.

E-Verify is a web-based program that allows employers to electronically verify the information provided on the Form I-9 including social security numbers with databases of the Social Security Administration (SSA) and the Department of Homeland Security (DHS). The Department of Homeland Security in conjunction with the Social Security Administration in 1996 established what is now the E-Verify program to supplement the current I-9 employment eligibility verification process.

The Bush Administration has taken three steps to begin to make good on a promise, made almost a year ago, to require all federal contractors to use E-Verify, part of a larger Administration plan to enhance immigration worksite enforcement within existing law. Federal contractors probably have several months to get ready to implement E-Verify, but the time has come to start.

President George W. Bush recently signed an Executive Order requiring all federal government contractors to use E-Verify to confirm the employment authorization of new hires and persons assigned to perform work on future federal contracts. E-Verify is the Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration to electronically verify employment eligibility of newly hired employees.

President Bush recently signed an Executive Order amending Executive Order 12989, requiring all federal contractors to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of their employees. Department of Homeland Security (DHS) Secretary Michael Chertoff has designated the federal E-Verify program as the system to be used in accordance with the Executive Order.

On June 6, 2008, President Bush amended Executive Order 12989 to require all federal contractors "to utilize an electronic employment verification system designated by the Secretary of Homeland Security to confirm the employment eligibility of their workforce..." On June 9, 2008, the Department of Homeland Security proposed a rule that would make E-Verify the system required under the order.

Last month, we provided you with information about the E-Verify program. The Department of Homeland Security (DHS) also offers another program: the ICE Mutual Agreement between Government and Employers (IMAGE) program. The stated goal is “to help restore the integrity of the immigration system of the United States by utilizing industry outreach and self-policing.” Let’s just say IMAGE takes E-Verify and “kicks it up a notch.”

On Monday, the White House announced that President Bush has signed Executive Order 12989, requiring all federal government contractors to use an electronic employment eligibility verification system, as designated by the secretary of homeland security, to verify the employment eligibility of their workforce. Secretary of Homeland Security Michael Chertoff has already announced that the Internet-based E-Verify program is the system that must be used. Specifically, federal contractors, as a condition of each future federal contract, must agree to use E-Verify to verify the work authorization of all new hires and all persons assigned to work on a contract within the U.S.

President George W. Bush signed an amendment to Executive Order 12989 on June 6, 2008, that requires all Federal contractors to use E-Verify. This action is a continuation of the recent trend at both the federal and state levels to mandate E-Verify enrollment, which was designed as a voluntary program. The full text of the Executive Order is available online.

I-9 compliance and work authorization are hot topics in the human resources world. Two government programs, E-Verify and IMAGE, are aimed at addressing the problems employers face in maintaining a legal workforce. This article addresses E-Verify. The IMAGE program, which encompasses E-Verify, will be addressed in a subsequent E*Zine.

Across the country, states continue to enact their own employment-related immigration legislation, including legislation requiring certain employers to use E-Verify to electronically verify the employment eligibility of their newly hired employees. Currently, seven states have implemented laws requiring certain employers, and state contractors to use E-Verify. The seven states mandating the use of E-Verify are Arizona, Arkansas, Colorado, Georgia, Mississippi, Oklahoma, and Rhode Island.

On March 21, 2008, the Department of Homeland Security released a Supplemental Proposed Rulemaking for the no-match rule previously published in August 2007 (the 2007 Final Rule). Interested persons have 30 days to submit comments on the supplemental regulation. The 2007 Final Rule proposed amendments to the Immigration and Nationality Act by establishing safe harbor procedures for employers who receive Social Security Administration "no-match" letters.

As discussed in our August 14, 2007 Legal Alert, the Department of Homeland Security (DHS) issued its final rule setting forth a safe harbor from liability for employing unauthorized aliens for employers who follow certain procedures in responding to a Social Security Administration (SSA) No Match Letter or a DHS Notice of Suspect Documents (Safe Harbor rule). That rule subsequently was enjoined by a federal district court in California and currently is not in effect.

The Department of Homeland Security (DHS) released a Supplemental Proposed Rule on March 21, 2008, and published it in the Federal Register, reissuing its "No-Match Letter" guidance. A prior final rule was published on August 15, 2007, but a federal court enjoined implementation of the rule in October 2007. The litigation has been stayed awaiting DHS's supplemental rulemaking. The substance of the rule remains the same; DHS has attempted only to clarify the intent and impact of the prior rule.

On November 7, 2007, the United States Citizenship and Immigration Services ("USCIS"), issued a revised form I-9 employment eligibility verification form as well as a companion employer handbook (M-274) which provides instructions for completing the Form I-9. Both the new form I-9 as well as the employer handbook are downloadable PDFs available on www.uscis.gov. Employers without computer access can order the USCIS Forms by calling the toll-free number at 1-800-870-3676. Individuals can also request the forms and information on the new rules and regulations by calling the National Customer Service Center toll-free at 1-800-375-5283.

As previously reported, the Department of Homeland Security ("DHS") released the revised I-9 form on November 7, 2007. Employers are required to use the newly revised I-9 form no later than December 26, 2007. Employers who do not use the revised I-9 form on or after December 26, 2007 will be subject to all applicable fines and penalties under the Immigration and Nationality Act.

On December 5, 2007, Department of Homeland Security ("DHS") Secretary Michael Chertoff released a statement confirming that DHS filed an appeal to the Ninth Circuit Court of Appeals requesting that the court lift the injunction against implementing the DHS no-match rule. On October 10, 2007, a federal court in California issued a preliminary injunction preventing DHS and the Social Security Administration ("SSA") from implementing the rule entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter. The court enjoined SSA from sending out the no-match letters because the letters were to include DHS language threatening possible criminal and civil liability for employers that failed to respond to the letters.

The Department of Homeland Security has requested the U.S. District Court for the Northern District of California to delay proceedings, until March 1, 2008, in a lawsuit seeking to halt the implementation of the DHS's regulation on Social Security Administration no-match letters in order to allow DHS to engage in a new rulemaking effort. Judge Charles R. Breyer has scheduled a hearing on the motion for December 14, 2007. The motion was filed November 23.

The Department of Homeland Security (DHS) published the 2007 revised I-9 Form in the Federal Register on November 26, 2007. Accordingly, although DHS has indicated that it will not seek penalties against an employer for using a previous version of the form on or before December 26, 2007, after that date employers must use the revised form or face potential penalties for noncompliance.

USCIS published a final notice in the Federal Register on November 26, 2007, requiring employers to start using the new Form I-9, Employment Eligibility Verification, beginning December 26, 2007. Employers may incur fines and penalties for failing to use the revised Form I-9 on or after this date.

U.S. Citizenship and Immigration Service (USCIS) announced in the November 26, 2007, Federal Register that all employers must transition to the revised Form I-9 no later than December 26, 2007. (A copy of the USCIS Press Release is attached.) Accordingly, effective December 26, 2007, employers who fail to use the revised form will be subject to applicable penalties.

On November 7, 2007, the U.S. CIS released the new I-9 form. The document should be implemented immediately by employers for their new hires.

The U.S. Citizenship and Immigration Services ("USCIS") today published a notice in the Federal Register that employers must transition to using the revised Employment Eligibility Verification Form I-9 not later than December 26, 2007. In line with the November 7, 2007 USCIS press release, employers have been given a thirty day grace period from publication of the notice to transition to the new I-9 form. Employers that do not transition to the revised form by December 26, 2007 will be subject to penalties.

On November 7, 2007, the U.S. Citizenship and Immigration Services (USCIS) issued a new Form I-9 document for use by employers. All employers are required to complete a Form I-9 for each employee hired in the United States. The Form I-9 establishes the employee’s identity and authorization to work in the United States, and must be completed within three days of hire. The new Form I-9 has been revised to comply with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

After years of delay, the U.S. Citizenship and Immigration Services (USCIS) announced yesterday the release of a newly-revised I-9 Employment Eligibility Verification Form. The new form reduces the number of employment authorization documents that employers are allowed to rely on as proof of identity and employment eligibility. USCIS is encouraging employers to start using the revised Form I-9 with new employees immediately. The form will actually become effective once the notice is published in the Federal Register, which is expected to happen in the very near future.

The U.S. Citizenship and Immigration Services (USCIS) has just released a revised Form I-9, Employment Eligibility Verification, for immediate use and a new M-274, Handbook for Employers, Instructions for Completing the Form I-9.

The U. S. Citizenship and Immigration Services (“USCIS”), formerly the Immigration and Naturalization Service (“INS”), recently announced the release of a new I-9 form for employers to use in verifying an employee’s authorization to work in the United States. The changes to the I-9 are relatively minor.

The U.S. Citizenship and Immigration Service (USCIS) (formerly the INS) recently announced the release of a new I-9 form to be used to verify an employee’s authorization to work in the United States. On the revised form, the government has eliminated 5 documents from List A of the List of Acceptable Documents. These documents are: Certificate of U.S. Citizenship (Form N-560 or N-570); Certificate of Naturalization (Form N-550 or N-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); and the unexpired Refugee Travel Document (Form I-571). The government also added the most recent version of the Employment Authorization Document (Form I-766) to List A.

U.S. Citizenship and Immigration Services (USCIS) has announced that a new Employment Eligibility Verification Form (I-9) is available for use. The Immigration Reform and Control Act (IRCA) of 1986 requires all U.S. employers to verify the employment eligibility and identity of all employees hired to work in the U.S. after November 6, 1986, by completing a Form I-9. Employers are required to retain I-9s for each employee for three years after the employee's date of hire, or one year after the date that employment is terminated, whichever is later. Employers are permitted to retain the I-9 in paper, microfilm, microfiche, or electronic format. In order to properly complete Form I-9, employees must provide, and employers must personally inspect, original documents that attest to the employee's identity and his or her authorization to work in the U.S.

U.S. Citizenship and Immigration Service (USCIS) issued a revised Form I-9 on November 7, 2007, Employment Eligibility Verification, and M-274, Handbook for Employers, Instructions for Completing the Form I-9.

The U.S. Citizenship and Immigration Services ("USCIS") yesterday issued a press release announcing that a revised I-9 form is now available for use. The changes to the I-9 are minor, dealing only with the list of documents that establish both identity and employment eligibility (List A). The documents that were removed from List A lacked security features that deter counterfeiting, tampering, and fraud. USCIS states that employers are "encouraged" to start using the revised I-9 form immediately but that use will be mandatory only after notice is published in the Federal Register. Littler Global will let you know when that publication occurs.

On November 7, 2007, U.S. Citizenship and Immigration Services (USCIS) released the revised I-9 form and the updated Handbook for Employers, Instructions for Completing the Form I-9. The revised I-9 form reduces the number of documents employers may accept for newly hired employees during the employment eligibility verification process in compliance with the reduction requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

On November 7, 2007, the U.S. CIS released the new I-9 form. The document should be implemented immediately by employers for their new hires.

Implementation of the new No-Match Safe Harbor Rule issued by the Department of Homeland Security (DHS) has been blocked indefinitely pending a full federal court proceeding. DHS is now prohibited from enforcing its No-Match Safe Harbor rule until resolution of this lawsuit, which could take a year or longer to reach.

The Social Security Administration (“SSA”) currently issues “no-match” letters to employers who submit more than 10 W-2s in a wage report that do not match SSA’s records and the no-matches exceed at least half of one percent of all the W-2s in the wage report. Prior to the current policy, the SSA was issuing “no-match” letters to all employers whose wage reports contained one or more no-match record. The change in policy has resulted in fewer “no-match” letters being sent to employers. In 2003, when the current policy was first implemented, SSA issued 125,000 no-match letters to employers, 770,000 less than in 2002.

A federal judge has issued a nationwide preliminary injunction against enforcement of the Department of Homeland Security's ("DHS") new rule entitled "Safe Harbor Procedures for Employers who Receive a ‘No- Match' Letter." The rule was scheduled to go into effect on September 14, 2007. It contained a safe harbor provision that outlined several steps that employers could take to avoid having social security "No-Match" letters used against them as evidence that they knowingly employed unauthorized aliens.

On October 10, 2007, a San Francisco district court judge granted an order preventing the implementation of the new Social Security No-Match regulations. U.S. District Judge Charles R. Breyer halted over 140,000 no-match letters from being issued by the Social Security Administration (SSA) to employers relating to approximately 8 million employees. This order was granted in connection with a lawsuit filed against the Department of Homeland Security (DHS) by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and other organizations on the grounds that the new regulations could lead to mass layoffs in low-wage industries. The order is in effect until a final decision can be reached in the case (which could be many months).

Based upon a recent decision by a federal judge in California, the Department of Homeland Security (DHS) cannot take steps to enforce its new “safe harbor” regulation regarding Social Security Number (SSN) mismatches until legal challenges to the regulation can be resolved. See American Federation of Labor v. Chertoff (N.D. Cal. October 10, 2007). Thus, while the new regulation’s 90-day time period for resolving SSN mismatches currently is not in effect, employers are still required, as they have always been, to respond to no-match letters in a reasonable manner. Employers will not likely receive any further clarification from DHS regarding specific steps required to resolve no-match letters until a court resolves the legal challenges to the new regulation.

On October 10, 2007, the U.S. District Court for the Northern District of California ruled that the "Social Security No Match Safe Harbor" regulations ("Final Rule"), published by the Department of Homeland Security (DHS) in August 2007, may have serious legal defects. Accordingly, the court entered a preliminary injunction against the regulations, replacing an August 31, 2007, temporary restraining order and effectively barring the government from publishing mismatch notices under the Final Rule for the foreseeable future. Absent intervention by a higher court, this injunction in AFL-CIO v. Chertoff indefinitely puts on hold the DHS Final Rule.

On October 10th, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking implementation of the Department of Homeland Security ("DHS") rule that would use Social Security mis-match records as a tool for immigration enforcement.

A federal judge has issued a preliminary injunction barring the Department of Homeland Security (DHS) from implementing its "no match" regulation that was originally set to take effect on September 14, 2007. The preliminary injunction also halts SSA/DHS from issuing notices of the new regulation to 140,000 employers across the country.

Judge Charles Breyer of the United States District Court for the Northern District of California on October 10, 2007, granted a preliminary injunction, blocking the implementation of a new federal program that would require employers to verify Social Security numbers and fire workers whose numbers did not match official records. Previously, on October 1, 2007, the judge issued a temporary restraining order that kept the Social Security Administration (SSA) from sending out 140,000 "no-match" letters that would have affected 8 million workers.

On Monday, a federal judge in the Northern District of California extended for 10 days a temporary restraining order that stops the implementation of a new Department of Homeland Security (DHS) rule that would affect employers' responsibilities in verifying workers' employment authorization.

Judge Breyer of the United States District Court for the Northern District of California on October 1, 2007, extended for 10 days a temporary restraining order stopping the government from implementing the Department of Homeland Security (DHS) rules on employer obligations when receiving Social Security Administration (SSA) "no-match" letters. The judge's order also stops the SSA from beginning to send notices to approximately 140,000 employers across the country notifying them of the new rules.

As we previously reported, the Department of Homeland Security (DHS) issued a final rule, scheduled to take effect on September 14, 2007, that would affect employers' responsibilities in verifying workers' employment authorization. Under the final rule, employers are expected to take specific steps when receiving a Social Security Administration (SSA) no-match letter to ensure they are complying with legal hiring requirements.

The recently issued Department of Homeland Security's (DHS) Final Rule regarding employers' obligations to respond to the Social Security Administration's (SSA)Social Security Number (SSN) mismatch notices was temporarily put on hold when on August 31, the U.S. District Court for the Northern District of California granted a nationwide Temporary Restraining Order (TRO) enjoining the implementation of the Rule, at least until after a hearing scheduled for October 1, 2007 on a preliminary injunction motion.

On September 14, 2007, new regulations were scheduled to go into effect that would directly impact many employers throughout the United States. These regulations defi ne when an employer has “constructive knowledge” that an employee lacks authorization to work legally in the United States. Immigration and Customs Enforcement (ICE) has stated that employers who fail to comply with the new rule may be found to have constructive knowledge of hiring an unauthorized worker and may face substantial penalties.

Regulations that become effective on September 14, 2007 will require employers to become active participants in verifying the identity of employees whose social security numbers do not match government records. The regulations issued by the Department of Homeland Security (DHS) are intended to ensure that only persons authorized to work in the United States become and remain employed. Employers who do not comply with the new rules can be considered as having “knowingly” hired an illegal worker and can face substantial fi nes.

Although Congress came close to passing an immigration reform bill this term, there has been no substantive change to the immigration laws. Yet, the Department of Homeland Security (DHS) and its Immigration and Customs Enforcement division (ICE) have increased enforcement of the existing law’s employment provisions. Thus, the former agency, the Immigration and Naturalization Service (INS), filed 25 complaints against employers for employing undocumented aliens in 2002, which was the INS’s last full year of existence. ICE filed 716 complaints in 2006. Some employers faced jail time for these criminal violations, including managers of employment services and the owner of a chain of donut shop franchises.

On Friday, August 31, a federal district court judge granted a nationwide temporary restraining order placing a hold on the Department of Homeland Security’s (DHS) new Social Security No-Match regulations. The final regulations were scheduled to take effect on September 14 (see the Ogletree Deakins’ E-Alert dated August 10, 2007.) The ruling also puts a hold on the federal government’s plan to start sending out No-Match Letters today.

A federal judge in San Francisco issued an order temporarily blocking the Department of Homeland Security from implementing its new “No-Match” Rule. The order will not only delay enforcement of the new Rule, but also puts on hold the government’s plan to send 140,000 No-Match letters to employers between September 4 and November 9 this year. These letters would affect several million employees. The judge will further consider the case against implementation of the Rule on October 1; the No-Match Rule will have no legal effect until at least that date.

The final rule for the ICE No-Match regulations will go into effect next month. The regulations provide employers with guidance on how to deal with the receipt of a No-Match letter from either the Social Security Administration (SSA) or from the Department of Homeland Security (DHS). The new regulations expand the definition of “constructive knowledge” as it pertains to the employee’s employment authorization. A “safe harbor” is provided to employers who have followed the regulations and are subsequently targeted for an audit.

The Department of Homeland Security (DHS) has issued new regulations providing guidance to employers who receive a “no match” letter from the Social Security Administration (SSA) indicating that the employer has submitted a W-2 form in which the combination of name and social security number does not match SSA records. The regulations also address the situation in which the employer receives a letter from DHS called a “Notice of Suspect Documents,” indicating that DHS has been unable to confirm that an immigration status document or employment authorization document used by an employee in completing an I-9 form was assigned to that person.

The final mismatch or "no match" regulation appears in today's Federal Register. Thus, the rule will be in effect September 14, 2007. Employers need to get ready now.

The Department of Homeland Security (DHS) issued a final rule today that will affect employers' responsibilities in verifying workers' employment authorization. Every year, the Social Security Administration (SSA) issues "no-match" letters to employers informing them that certain employees' names and corresponding Social Security numbers provided on Forms W-2 do not match its database. The new DHS regulations provide specific steps employers must take when receiving a no-match letter to ensure they are complying with legal hiring requirements.

After more than a year of anticipation, the Department of Homeland Security (DHS) has at last issued a Final Rule addressing an employer's obligations in response to receipt of a social security number (SSN) mismatch notice from the Social Security Administration (SSA). The final rules are materially similar to the draft published for comment in June 2006. (See DHS Publishes Proposed "Safe Harbor" Procedures for Employer Who Receive "No-Match" Letters) On Friday, August 10, 2007, DHS published the Final Rule ("Safe-Harbor Procedures for Employers Who Receive a No-Match Letter"), with publication in the federal register expected this week. The Final Rule states that receipt of a Social Security Administration (SSA) no-match letter can be evidence that the employer has constructive knowledge that an employee lacks work authorization; however the Final Rule also creates safe harbor procedures for employers to avoid liability. It is anticipated that the regulations will take effect 30 days after publication in the Federal Register.

Today, the Department of Homeland Security (DHS) implemented new rules regarding Social Security No-Match Letters. Under the regulations, new specific legal obligations are imposed on employers that receive the so-called "no-match" letter from the Social Security Administration (SSA). A no-match letter may be issued when an employee's social security number does not match the employee's name in the SSA database.

Today,the Department of Homeland Security announced publication of a final rule establishing safe harbor procedures for employers who receive an SSA mismatch letter or notice from DHS that an individual lacks authorization to work.

On August 15, 2007, the Department of Homeland Security (“DHS”) published the final “Safe Harbor Procedures For Employers Who Receive A No-Match Letter” regulation in the Federal Register. This Rule sets forth recommended procedures for employers to follow after receiving a No-Match Letter from the Social Security Administration (“SSA”) or a Notice of Suspect Documents from DHS. Following these recommended procedures can help employers avoid civil and criminal liability for employing an unauthorized worker. The final “No-Match Safe Harbor Rule” will take effect on September 14, 2007.

The Social Security Administration (“SSA”) currently issues “no-match” letters to employers who submit more than 10 W-2s in a wage report that do not match SSA’s records and the no-matches exceed at least half of one percent of all the W-2s in the wage report. Prior to the current policy, the SSA was issuing “no-match” letters to all employers whose wage reports contained one or more no-match record. The change in policy has resulted in fewer “no-match” letters being sent to employers. In 2003, when the current policy was first implemented, SSA issued 125,00 no-match letters to employers, 770,00 less than in 2002.

Colorado is the first state to impose employment verification obligations in addition to those already imposed by the federal requirments (the I-9).

What Obligations Do Employers Have Relating to Verifying the Employment Eligibility of All Employees?

What Obligations Do Employers Have Relating to Verifying the Employment Eligibility of All Employees?

On June 15, 2006, the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security (“ICE”) published an interim rule which permits employers who are required to complete and retain I-9 forms to sign and retain these forms electronically. This interim rule appears in the Federal Register at: 71 FR 34510 - 34517 and became effective on June 15, 2006.

Many employers who receive a “no match” or “mismatch” letter from the Social Security Administration (“SSA”) question what it means and how to respond. A “no match” letter simply means that an employee’s name or social security number on a W-2 does not match the SSA records. An employee’s mere appearance on a “no match” letter does not mean the employee is not authorized to work in the United States. Indeed, there could be many reasons for the “no match” that have nothing to do with an employee’s work status, such as a name change, marriage, etc.

The “I-9” is what people use to describe the Employment Eligibility Verification Forms I-9 and is one of the tools used by the government to try to ensure that employers are hiring only those individuals eligible to work in the United States.

Recent media reports revealing that employers indicted for harboring illegal aliens had disregarded hundreds of Social Security mismatch notifications (See Immigration Raids Signal New Enforcement Emphasis by ICE (June 2006)) have, at last, led the Department of Homeland Security (DHS) to address the role that mismatch letters should play in assessing the legitimacy of work authorization. On Wednesday, June 14, DHS published in the Federal Register proposed rules outlining recommended procedures for employers to follow in response to mismatch notices in order to stave off claims that mismatch notices provided constructive knowledge that the company employed unauthorized alien workers.

On June 14, 2006, the Bureau of Immigration and Customs Enforcement ("ICE"), of the Department of Homeland Security ("DHS"), published a proposed regulation regarding how employer(s) respond to mis-match letters from the Social Security Administration ("SSA") (71 FR 34281 (06/14/06). The proposed regulation specifies "safe harbor" procedures for employers which receive such letters.

The Social Security Administration has recentlytaken steps to ensure the integrity of Social Securitynumbers (“SSN’s”). The Social Security Administrationhas implemented a new online program available toemployers and certain third party submitters to allowthese entities the ability to verify names and SSN’sagainst the Social Security Administration’s records.

The Social Security Administration has recently taken steps to ensure the integrity of Social Security numbers (“SSN’s”). The Social Security Administration has implemented a new online program available to employers and certain third party submitters to allow these entities the ability to verify names and SSN’s against the Social Security Administration’s records. These safeguards have been useful in preventing and combating identity theft and the use of fraudulent SSN’s by individuals who do not possess employment authorization in the United States. Correct SSN’s are essential in the posting of wages under the correct employee’s name for the determination of retirement, disability and survivor benefits.

On December 12, 2005, the United States Supreme Court decided to review the U.S. Court of Appeals for the Eleventh Circuit’s decision in Williams v. Mohawk Industries, Inc., 411 F.3d 1252 (11th Cir. 6/9/05); cert. granted, 126 S.Ct. 830 (U.S. 12/12/05). The Supreme Court granted certiorari to resolve a Circuit split on corporate liability under the Racketeer Influenced and the Corrupt Organization Act (“RICO”), 18 U.S.C. §1962(c) et seq., for the employment of undocumented illegal aliens.

The Department of Homeland Security has announced that it will not impose penalties on employers who hire evacuated or displaced Hurricane Katrina victims who are unable to provide documentation of their identity and work authorized status as required for completion of Form I-9. This moratorium on civil penalties will extend for 45 days, at which point DHS will review this policy.

The Department of Homeland Security (DHS) announced today that it will not sanction employers for hiring victims of Hurricane Katrina who, at this time, are unable to provide documentation normally required under Section 274A of the Immigration and Nationality Act. DHS will not bring sanction actions against employers for hiring individuals evacuated or displaced as a result of Hurricane Katrina otherwise eligible for employment but who currently lack personal documents.

Recognizing that many displaced persons in the Hurricane Katrina affected regions are likely no to have access to their social security numbers, work authorization documents or even their drivers’ licenses, the Department of Homeland Security (DHS) issued a press release today indicating that it will not sanction employers for hiring victims of Hurricane Katrina who, at this time, are unable to provide documentation normally required under Section 274A of the Immigration and Nationality Act. DHS will not bring sanction actions against employers for hiring individuals evacuated or displaced as a result of Hurricane Katrina otherwise eligible for employment but who currently lack personal documents.

Employers may now electronically complete and store employee eligibility (I-9) forms, according to a law that went into effect on April 28, 2005.

New test cases claim that it is not just coincidence when a large pool of illegal immigrants migrate to an area while an employer, without fear of liability, blithely accepts a series of bogus identification documents from workers. By using the Racketeer Influenced Corrupt Organizations Act (RICO) statute, plaintiffs are trying to prove that an illegal criminal enterprise composed of employers, recruiters, and staffing companies are together benefiting from the increased illegal population brought to the area through the criminal acts of some members of the enterprise.

On June 21, 2005, the Citizenship and Immigration Service issued a press release announcing an ostensibly "new" I-9 form. The I-9 is required to be used by all employers to document the authorization to work in the United States for all newly hired individuals.

The United States Citizenship and Immigration Services (USCIS) and the United States Immigration and Customs Enforcement (ICE) announced on June 21, 2005 that a newly updated version of the Employment Eligibility Verification Form (Form I-9) is now available.

Established pursuant to the Immigration Reform and Control Act of 1986, P.L. 99-603, the Systematic Alien Verification for Entitlements program's Verification Information System database currently contains selected immigration status information on over 60 million records.

President Bush has signed into law H.R. 4306, which authorizes the electronic storage of Form I-9, in addition to the traditional paper original, microfiche, and microfilm storage technologies.

Before recessing for the upcoming election, Congress passed a new law that will allow employers the option of completing and storing I-9 employment verification forms electronically.

In 2002 the Social Security Administration (SSA) began issuing Social Security number (SSN) “no match” letters to all employers whose wage reports contain even one SSN or employee name that does not match their records.

INS has added thirteen additional countries to the list of countries whose nationals and citizens are required to complete Special Registration with INS. The newly added countries are: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen.

The Social Security Administration (SSA) recently changed its policy regarding issuance of letters to employers for employees whose social security numbers (SSNs) did not match the SSA's records when reported on W-2s.

While the substantive requirements of the Form I-9 employment authorization verification system have not changed since September 11, 2001, the INS has conducted I-9 inspections of certain employers in vulnerable industries.

The Supreme Court has refused to enforce a National Labor Relations Board order holding instead that illegal aliens terminated in violation of the NLRA are not entitled to backpay.

All U.S. employers are required to verify whether their employees are authorized to work in the United States.