FAIR Update — Washington Post — The Heritage Foundation — DHS Press Releases — Federal Register (Final Rule – FAC 2005-29, FAR case 2007-013)
The four amendments include:
- Sessions E-Verify Amendment #1371 — Offered by Senator Jeff Sessions (R-AL), Amendment #1371 makes the E-Verify program permanent. E-Verify is the online, electronically operated system that allows employers to quickly and easily check the work authorization status of their new employees. (For more on E-Verify, see FAIR’s E-Verify Backgrounder). In addition to making this valuable program permanent, the Sessions Amendment requires all employers who do business with the federal government to use E-Verify on their new hires, as well as existing employees assigned to affected federal contracts.The adoption of the Sessions Amendment did not come without opposition. Senator Chuck Schumer (D-NY) — a well-known amnesty advocate and chairman of the Senate Judiciary Immigration Subcommittee — gave floor speeches on Tuesday, July 7 and Wednesday, July 8 in which he urged his fellow senators to oppose the Sessions Amendment. (See Schumer’s speeches from July 7, 2009 and July 8, 2009). On July 8, Schumer offered a motion to table — or kill — the amendment. However, the Senate supported the Sessions Amendment by rejecting Schumer’s motion on a 44-53 vote. (Senate Roll Call Vote #219, July 8, 2009).Following the vote on the motion to table, the Senate agreed by a voice vote to adopt a second degree amendment offered by Senator Patrick Leahy (D-VT) that added language to the Sessions Amendment to permanently authorize the EB-5 Immigrant Investor Regional Center pilot program. (Senator Leahy Press Release, July 8, 2009). This program sets aside 3,000 visas annually for wealthy foreign investors. Following the adoption of Leahy’s second degree amendment, the Senate approved the Sessions Amendment by a voice vote. (Congressional Quarterly, July 9, 2009).
- DeMint Border Fence Amendment #1399 — Offered by Senator Jim DeMint (R-SC), Amendment #1399 requires the Department of Homeland Security (DHS) to complete almost 700 miles of double-layered reinforced fencing along the southwest border by the end of 2010. (Senator DeMint Press Release, July 8, 2009). The DeMint Amendment would direct DHS to complete the border fence as Congress originally intended when it passed the Secure Fence Act of 2006. DHS has been constructing fencing that would prevent vehicular border crossings, but the DeMint Amendment will ensure that the border fence will also reduce illegal alien foot traffic.Under the Secure Fence Act, the federal government was instructed to complete “at least 2 layers of reinforced fencing” along a total of about 670 miles of the U.S.-Mexico border before the end of 2008. (Secure Fence Act of 2006). However, in December 2007, Senator Kay Bailey Hutchison (R-TX) successfully attached an amendment to the 2008 Consolidated Appropriations Act that effectively gutted the two layer reinforced fencing requirement by giving DHS the discretion to construct other types of barriers to count toward the 670 mile total. (Consolidated Appropriations Act, 2008, December 26, 2007). As a result, the Government Accountability Office (GAO) reported in January 2009 that only 32 miles of double-layered fencing had been built, and that DHS had no intention to significantly add to that total. (GAO Report, January 29, 2009). The DeMint Amendment restores DHS’ original mandate to complete the entire 670-mile southwest border fence using only double-layered, reinforced fencing. On July 8, the Senate voted 54-44 to adopt the DeMint Amendment. (Senate Roll Call Vote #220, July 8, 2009).
- Vitter “No-Match” Amendment #1375 — Offered by Senator David Vitter (R-LA), Amendment #1375 prohibits any of the funding in the FY2010 Homeland Security spending bill from being used to rescind a DHS final rule that provides a method for DHS to notify employers when there are mismatches between names and social security numbers provided by their employees and to instruct employers on how to deal with these so-called “no-match” letters. The Senate approved the Vitter Amendment on July 9 by a voice vote. (Senator Vitter Press Release, July 9, 2009).The adoption of the Vitter Amendment came just one day after the Obama Administration announced its intention to rescind the No-Match rule. (DHS Press Release, July 8, 2009). If Senator Vitter’s amendment survives conference, it will not take effect will until October 1, 2009. The Obama Administration could rescind the No-Match rule before the Vitter Amendment goes into effect.
- Grassley E-Verify Amendment #1415 — Offered by Senator Charles Grassley (R-IA), Amendment #1415 would give employers who are enrolled in E-Verify the option to use the program to check the work authorization status of existing employees in addition to new hires. Currently, E-Verify can only be used to check the status of new hires. The Grassley Amendment was adopted by a voice vote on July 9. (Senator Grassley Press Release, July 9, 2009). The benefit of the Grassley Amendment is that employers would be able to begin using E-Verify to ensure that all of their employees are legal — not just their new hires. This would help free up jobs currently held by illegal aliens so that out-of-work Americans could apply for those jobs.
Also on July 9, the Senate adopted one other immigration-related amendment (Amendment #1428) to the FY2010 Homeland Security spending bill. Sponsored by Senator Orrin Hatch (R-UT) and adopted by voice vote, Amendment #1428:
- Reauthorizes the Special Immigrant Non-Minister Religious Worker Visa Program for three years. This program, which would otherwise expire in September, provides 5,000 visas annually for foreign non-minister religious workers to enter the United States to perform work for religious institutions. U.S. Citizenship and Immigration Services has found that the Religious Worker Visa Program is highly susceptible to fraud. (Office of Fraud Detection and National Security Fraud Assessment Summary, July 2006).
- Reauthorizes the Conrad 30 Program for three years. The Conrad 30 program, which would also otherwise expire in September, allows foreign doctors who attend school in the United States to extend their stay if they agree to practice in medically underserved communities for three years.Eliminates the requirement that an alien widow or widower of a deceased U.S. citizen must have been married to the citizen for a minimum of two years or face the automatic denial of a marriage-based petition for a green card application. (Senator Hatch Press Release, July 10, 2009).
- Under current law, a citizen may petition for a green card on behalf of his or her alien spouse. However, current law provides that the petition for a green card for a widow or widower alien whose spouse dies before the couple has been married for two years must ultimately be denied. This provision is designed to prevent marriage fraud. (See FAIR’s Legislative Update, June 15, 2009)…
States Requiring the use of E-Verify (Source: NumbersUSA)
Obama, Napolitano Scrap DHS No-Match Rule, Affirm E-Verify Rule for Federal Contractors
The Obama Administration and the Department of Homeland Security (DHS) made two policy announcements this week. The first will help illegal aliens keep their current jobs and make it easier for illegal aliens to commit Social Security fraud. The second merely restates a Bush-era regulation regarding the use of E-Verify by federal contractors.
On Wednesday, July 8, DHS Secretary Janet Napolitano announced that the Obama Administration would finally implement a Bush-era federal regulation that would require most federal contractors to use E-Verify, the federal government’s employment verification program. The DHS press release praised the effectiveness and reliability of E-Verify, saying the program represents a “smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce.” According to DHS, E-Verify scored high marks in terms of accuracy, reliability, and user convenience and satisfaction. Secretary Napolitano also reiterated that E-Verify is federally funded and is made available to employers at no cost. (DHS Press Release, July 8, 2009).
Despite the welcome news that DHS would begin to require federal contractors to use E-Verify for future contracts, the announcement comes after the Obama Administration delayed this same Bush-era rule on three separate occasions. In the release, Secretary Napolitano noted that DHS will not be applying the regulation until September 8, 2009. (Id.). This means that more than seven months’ worth of federal contracts, including many stimulus contracts, will have been signed by the Obama Administration before this regulation that will protect American jobs will go into effect. (Examiner.com, July 8, 2009; GovernmentExecutive.com, July 8, 2009; and Human Events, July 9, 2009).
Secretary Napolitano also announced that DHS would rescind the so-called “No-Match Rule.” (DHS Press Release, July 8, 2009 and National Review, July 8, 2009). Under the No-Match Rule, the Social Security Administration (SSA) would have been required to notify employers who report earnings for at least ten employees whose names do not match their Social Security numbers (SSNs). The rule would have required that employers double-check their records for accuracy and then have employees work to correct any discrepancies. When DHS announced the No-Match Rule in October 2008, the Department stated: “there is a substantial connection between social security no-match letters and the lack of work authorization by some employees whose SSNs are listed in those letters.” Additionally, DHS cited a private study that concluded that ”most workers with unmatched SSNs are undocumented immigrants.” (No Match Final Rule, October 8, 2008). Last week, Napolitano ignored the role the No-Match Rule could play in immigration enforcement and instead attributed most Social Security no-match letters to “typographical errors or unreported name changes.” (DHS Press Release, July 9, 2009)…
Homeland Security Announces Changes to 287(g) Program
Late last week, Homeland Security Secretary Janet Napolitano announced that U.S. Immigration and Customs Enforcement (ICE) will alter the process that state and local law enforcement agencies must follow in order to participate in the 287(g) program. The 287(g) program — named for the section of the Immigration and Nationality Act that authorizes the program – allows ICE to enter into agreements to train state and local law enforcement agencies in the enforcement of federal immigration laws.
In order to participate in 287(g), state and local law enforcement agencies are required to enter into a Memorandum of Agreement (MOA) with ICE. According to ICE, MOAs are designed to define “the scope and limitations of the authority to be designated” under 287(g). An MOA also establishes “the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA.” (ICE Fact Sheet). Napolitano’s announcement last week indicated that ICE has “standardized the Memorandum of Agreement (MOA) used to enter into ’287(g)’ partnerships.” (DHS Press Release, July 10, 2009). According to the DHS press release, the new MOA “aligns 287(g) local operations with major ICE enforcement priorities — specifically, the identification and removal of criminal aliens.” The new MOA, the press release says, is meant “to address concerns that individuals may be arrested for minor offenses as a guise to initiate removal proceedings.” (Id.).
According to the author of the legislation that created 287(g) (House Judiciary Committee Ranking Member Lamar Smith (R-TX)), the new, one-size-fits-all, Washington-knows-best MOA approach contradicts with the legislative intent of the program. Smith noted at a House Homeland Security Committee hearing in March that “the goal was to really enable those local law enforcement authorities who wanted to enforce the immigration laws in whatever way they thought best…and that’s really a decision made by the government in individual situations.” (House Homeland Security Committee Hearing, March 4, 2009).
In addition, ICE’s new emphasis on aligning 287(g) with “the identification and removal of criminal aliens” is another departure from Congress’ intent. According to Smith, 287(g) MOAs should be tailored to suit the needs of law enforcement agencies who elect to participate in the program, “and that might or might not include those who have committed serious crimes.” (Id.). DHS’ announcement eliminates much needed flexibility in the program that has helped local government tailor the MOAs to meet their local needs. A January 2009 Government Accountability Office (GAO) report confirming Rep. Smith’s statement regarding the focus of the 287(g) program calls into question the DHS decision, which could dramatically undermine the effectiveness of the program. According to GAO, “Section 287(g) and its legislative history do not detail…which removable aliens should be prioritized for removal.” (GAO Report, January 2009)…
Schumer Pushes Amnesty Bill by Labor Day, Despite the Objections of the American People
Last week, Senator Chuck Schumer (D-NY), chairman of the Senate Immigration Subcommittee, declared that he expects to have a new amnesty bill ready by Labor Day. (The Associated Press, July 8, 2009). This announcement came on the heels of a report released by an Independent Task Force of the Council on Foreign Relations (CFR) (The Washington Post, July 9, 2009), co-chaired by former Florida governor Jeb Bush and former Clinton White House chief of staff Thomas McLarty. The Task Force concluded that an amnesty program “is necessary and warranted for many illegal immigrants living in the United States.” (Council on Foreign Relations Independent Task Force Report No. 63, July 8, 2009).
Senator Schumer’s declaration and the conclusion of the CFR Task Force are out-of-touch with the views of the American people as evidenced by a recently released Rasmussen poll. According to Rasmussen, this latest push for amnesty comes at a time when most voters don’t view immigration as a priority issue. Instead of passing an amnesty bill, 66% of likely voters say it is very important for the government to improve its enforcement of the borders and reduce illegal immigration. In addition, 75% of voters believe that the federal government is not doing enough to secure the nation’s borders. (Rasmussen Reports, July 7, 2009). The American people understand that amnesty would allow the more than 12 million illegal aliens in the United States to begin openly competing for any available jobs with the nearly 14.7 million American workers who are currently out of work. (See FAIR’s Amnesty and Joblessness Report, July 2009).
States with In-State Tuition Laws (Source: NumbersUSA)
By Spencer S. Hsu – Washington Post Staff Writer – Thursday, July 9, 2009
President Obama will abandon a controversial immigration crackdown, sought by his predecessor, to pressure U.S. companies to fire 9 million workers with suspect Social Security numbers, Homeland Security Secretary Janet Napolitano announced yesterday.
Instead, Obama will mandate that federal contractors confirm the identities of 4 million workers against federal databases beginning in September, pushing ahead under pressure from Senate Republicans with another long-stalled Bush administration initiative.
Napolitano said her department will rescind a 2007 rule, tied up in federal court, that would have sent Social Security “no-match” letters to 140,000 U.S. employers. The notices were to warn companies to resolve discrepancies or fire suspect workers within 90 days, or face criminal penalties.
Instead, she said, the Department of Homeland Security will take a “more modern and effective” approach, ordering an estimated 170,000 federal contractors to confirm employees’ work documents against E-Verify, until now a voluntary electronic government system for companies to check new hires’ immigration and Social Security data.
Combined with a renewed emphasis by the DHS on targeting companies that hire illegal immigrants with civil fines and audits instead of high-profile raids, the moves mark the clearest sign yet of Obama’s efforts to chart a middle course on immigration enforcement, analysts said.
The administration’s announcement appeared aimed at satisfying law-and-order conservatives on Capitol Hill, where Senate Republicans successfully amended Homeland Security’s $43 billion 2010 budget yesterday to extend E-Verify to federal contractors and to expand construction of fencing on the U.S.-Mexico border.
“The American people have made it clear that immigration reform should start with better enforcement of the laws already on the books,” said Sen. Jeff Sessions (Ala.), the ranking Republican on the Senate Judiciary Committee. “Making [E-Verify] permanent and mandatory for federal contractors would be a big step toward meeting the public’s expectations.”
At the same time, Obama has told immigrant advocacy groups that Congress should try to overhaul the nation’s immigration laws within the coming year with the support of business groups and organized labor, all of whom had bitterly opposed the no-match rule.
“The Obama administration is trying to find its voice and put forward a coherent enforcement strategy,” said Angela Kelley, immigration analyst at the left-leaning Center for American Progress. “They’re looking for solid footing on enforcement so they can move on to what is the unknown territory” of broader legislation addressing the fate of 12 million illegal immigrants and the future flow of foreign workers, she said.
The complexity of navigating a centrist course, however, was revealed yesterday by the mixed reaction to Napolitano’s announcement.
As expected, business groups such as the U.S. Chamber of Commerce hailed the decision to kill the no-match rule. Since October 2007, a federal judge had held up the rule, acknowledging arguments by critics that the Bush administration failed to consider the impact on small businesses and that the rule could lead to discrimination against many legal workers because of millions of errors in the government’s Social Security databases.
But Angelo I. Amador, a spokesman for the Chamber, said business groups will continue to fight the contractor requirement in federal court, arguing that Congress never intended to make participation in the worker verification program mandatory.
“As of right now, our position remains that the rule as written is unconstitutional,” Amador said…
Saturday, July 11, 2009
The July 9 news story “Obama Revives Bush Idea to Catch Illegal Workers” said that the Obama administration will not force 9 million American workers with suspect Social Security numbers to provide evidence of their identity and the legitimacy of their numbers to retain their jobs. This lack of strict enforcement also may contribute to illegitimate voting.
While unemployment among people carrying legitimate Social Security numbers is nearing 10 percent, as many as 9 million unknown fabricators are allowed to continue working.
I voted for President Obama because he promised to bring change and accountability to Washington, but it is beginning to seem as if he is of the same ilk as his predecessor. George W. Bush is clearly not off the hook for his failure to act on this security issue. He did nothing for close to eight years but talk about doing something. Though there are implications here for homeland security, it is politics as usual — one politician setting up the other to try to gain an advantage. But in Mr. Obama’s case, he promised to stop it. It is simple: This is sanctioned identity fraud.
CHANDLER GARDINER Falls Church
US Census Bureau; demographer Leon Bouvier; Roy Beck, Numbers USA (Source: CAIR)
by James Jay Carafano, Ph.D. WebMemo #2535 July 10, 2009
This week, the Department of Homeland Security (DHS) announced it plans to kill some responsible, reasonable workplace verification rules. As a result, the department will perform less–not more–workplace checks.
This announcement undercuts the claim that the department is interested in “smart and tough” immigration enforcement.Effective workplace enforcement is vital, as employment is the principal draw for illegal immigrants to come to the United States. They come here for the jobs. Enforcing workplace laws is a vital component to create disincentives to unlawful immigration. Congress should not authorize or fund efforts to scale back workplace enforcement.
What DHS Did: Giving the Green Light to Employers to Hire Unauthorized Aliens
Homeland Secretary Janet Napolitano announced today that the department intends to rescind the 2007 Social Security No-Match Rule, a rule designed to clarify the obligations employers had with respect to knowingly hiring unauthorized aliens.
No-match letters are not new and are a tested component of the Social Security system, in use for nearly 30 years. The Social Security Administration (SSA) is required to track workers’ wage histories and collects this information from the W-2 forms that employers submit each year for each employee. Each year, the SSA receives 8-11 million W-2 forms containing names and Social Security numbers that do not match the information in its records. In 1994, SSA started sending no-match letters to employers who submitted 10 or more W-2 forms that could not be matched to SSA records or who have no-matches for more than one-half of 1 percent of their workforces. The majority of the individuals named in the no-match letters sent to employers are aliens unauthorized to work in the United States.
Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal to “knowingly” employ an alien unauthorized to work in the United States. However, some employers were uncertain as to whether receiving a no-match letter amounted to constructive knowledge that an employee was unauthorized to work. Many employers took advantage of this uncertain state of affairs and did little or nothing upon receipt of a no-match letter.
Therefore, in August 2007, the Immigration and Naturalization Service (INS) promulgated a formal rule on no-match letters to ensure greater uniformity of enforcement and to clarify the definition of “constructive knowledge.” The rule carved out a safe harbor for employers who receive no-match letters and spelled out what employers must do upon receipt of a no-match letter.
The new rule and guidance were an attempt to inform employers of their obligations under IRCA and of the risk they run by turning a blind eye to their employees’ false or forged credentials. Anti-enforcement groups were quick to protest, admitting that this new approach would actually have an impact on illegal employment. They sued, and in October 2007 a federal court issued a preliminary injunction against enforcement of the rule on the grounds that DHS did not sufficiently justify its change in policy among other things.
Subsequently, DHS provided its justification for the change in policy and amended the proposed rule in compliance with the court’s order. There is every reason to believe that the Administration would ultimately succeed in court if it pressed forward with this lawsuit. The amended proposed rule would become law, and employers would have the specific guidance they need to be in compliance with IRCA.
What DHS Did Wrong
Instead, the department said it will no longer seek to issue revised no-match letters and rely solely on a “more modern and effective E-Verify system.” Through E-Verify, participating employers can instantly check the work eligibility status of new hires through a secure online service that compares information from an employee’s I-9 form against SSA and DHS databases. This service is provided free to employers (though the individual companies must bear the cost of providing the infrastructure and people to enter the data). The system has proven to be quite effective, and SSA and DHS continue to work to improve service, reliability, and privacy protections.
The department also announced “the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization.” This is unobjectionable and in fact merely a continuance of the previous Administration’s plans and not a new initiative.
E-Verify is an excellent program. It is, however, not mandatory for all employers. Thus, the first consequence of not issuing no-match letters–and failing to allow DHS to check the no-match data compiled by SSA to identify employers who habitually scoff workplace at immigration laws–is that DHS will be doing less workplace enforcement, not more. In addition, it is not fully clear whether this Administration will fully comply with the intent of the previous Administration to apply E-Verify to all federal contract employees.
If, for example, E-Verify were applied only to new employees hired specifically for the contract work, then for instance, if a construction firm hires an unlawfully present individual and then one week later assigns him to work on a federal contract project, this unlawful individual would be considered an “existing employee” not subject to E-Verify.This Administration must craft the E-Verify rules to apply to all existing employees working for the federal government (a rule in place in the Bush Administration) and under federal government contracts; otherwise the result would be less work place enforcement, not more. That is unacceptable.
The DHS press release stated that the department was abandoning “no-match” because it had been challenged in the courts and an injunction was issued byDistrict Judge Charles Breyer. This statement is at odds with an announcement last year by the department when it proposed a revised rule on issuing no-match letters. Then, the department argued “additional detail provided in the proposal is enough to have the injunction lifted.” In fact, the Bush Administration amended the proposed rule consistent with Judge Breyer’s ruling, and there is every reason to believe that he would be forced to lift the stay if this Administration pushed the issue in court with him. Conversely, the press announcement did not note that the department’s efforts to have E-Verify apply to federal contractors has also been challenged in court. Indeed, any efforts at real workplace enforcement are likely to be challenged in the courts. Offering court challenges as an excuse to make bad public policy is unacceptable as well.
One hundred percent verification of workplace enforcement is already a requirement by law.In order to curtail illegal immigration, this statute should finally be enforced by moving toward requiring all employers to use E-Verify to confirm the employment eligibility of all new hires and current employees.
Government policy should be based on the principles of empowerment, deterrence, and information. It should empower honest employers by giving them the tools to determine quickly and accurately whether a new hire is an authorized worker. It should hold employers free from penalty if they inadvertently hire an illegal worker after following the prescribed procedures.
Government should perform this verification in the most efficacious manner possible, one that is cost-effective; protects individual data and privacy; minimizes the burden on employers; and addresses concerns over security, public safety, and enforcement of workplace and immigration laws. Nothing less is acceptable. E-Verify is an important component of this effort and must be authorized as a permanent program and fully funded by the Congress and its use expanded by the government as practicable. Unitl E-Verify is more broadly adopted throughout the U.S. workforce, E-Verify must be complemented by a robust no-match letter process that assists employers by specifically spelling out their obligations. By rescinding the 2007 no-match letter amended rule, the Administration is effectively saying that it will not enforce the law against employing illegal immigrants for the overwhelming bulk of U.S. employers. It is giving employers of unauthorized aliens legal cover and an excuse not to follow IRCA. The new policy is an “open door” to hiring illegal immigration at a time of near record-high unemployment among American workers.
Rather than kill 2007 amended rule on “no-match” letters, a far better policy would be to retain the letter option and, in addition, for the SSA to routinely share no-match data directly with DHS. This can be done in a manner that does not risk individual employees’ sensitive information or civil liberties. With this data, DHS could more efficiently target employers who willfully hire unlawfully present labor.
Congress Must Act
The right approach to immigration enforcement is to combine “no-match” letters and greater data sharing between DHS and SSA with a reasonable and robust E-Verify program. The outline of the plan announced by DHS today may in the not too distant future leave America with neither. Consequently, Congress should:
- Reject the plan announced by DHS to abandon the 2007 amended “no-match” letter rule;
- Establish in law the authority for SSA and DHS to routinely and appropriately share SSA data in a manner that respects and safeguards personal information and the right to privacy;
- Permanently authorize E-Verify and fund DHS to continue to expand and improve the program;
- Require the department to issue a report explaining what is meant by “smart and tough enforcement” and each component of its workplace and immigration enforcement strategy;
- Direct the General Accountability Office to evaluate the department’s workplace enforcement strategy; and
- Defer major immigration or border security enforcement reform legislation until the Administration implements a comprehensive, suitable, feasible, and acceptable policy for workplace and immigration enforcement.
It is the responsibility of Homeland Security to enforce the law in a manner that is both reasonable and effective. This week’s announcement fails that test. Congress should not let it stand.
James Jay Carafano, Ph.D., is Assistant Director of the Kathryn and Shelby Cullom Davis Institute for International Studies and Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies at The Heritage Foundation.
US Census Bureau – Statistical Yearbook – Immigration and Naturalization Service — Averages: 178,000 per year from 1925-1965, 195,000 per year from 1921-1970 (Source: CAIR)
Release Date: July 8, 2009
For Immediate Release
Office of the Press Secretary
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.
“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.”
E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.
The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.
On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent.
In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.
DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.
As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report). For more information on E-Verify, visit www.uscis.gov/everify.
- “Priorities Enforcing Immigration Law”
Testimony of Michael Aytes, Acting Deputy Director
- Rule Requiring Federal Contractors to Use E-Verify System Delayed
- Federal Contractors Frequently Asked Questions (FAQs)
- Secretary Announces Administration’s Support for E-Verify
Federal Contractor rule delayed until September 8, 2009
The effective date of the final rule requiring certain federal contractors and subcontractors to use E-Verify has been delayed until September 8, 2009.
The rule will only affect federal contractors who are awarded a new contract after September 8, 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 new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. You can read frequently asked questions about this new rule in the link below.
[Federal Register: November 14, 2008 (Volume 73, Number 221)]
[Rules and Regulations] [Page 67651-67705]
From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr14no08-30]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 22, and 52
[FAC 2005-29; FAR Case 2007-013; Docket 2008-0001; Sequence 1] RIN 9000-AK91
Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification
AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the E-Verify system administered by the Department of Homeland Security, U.S. Citizenship and Immigration Services, as the means of verifying that certain of their employees are eligible to work in the United States.
DATES: Effective Date: January 15, 2009.
Applicability Date: Contracting Officers should modify, on a bilateral basis, existing indefinite-delivery/ indefinite-quantity contracts in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAC 2005-29, FAR case 2007-013.
A. Background and Purpose
Employment Eligibility Verification Requirements
As explained more fully in the proposed rule, the Federal Property and Administrative Services Act of 1949 (FPASA), authorizes the President to “prescribe policies and directives” governing procurement policy “that the President considers necessary to carry out” that Act and that are “consistent” with the Act’s purpose of “provid[ing] the Federal Government with an economical and efficient” procurement system. 40 U.S.C. 101, 121.
On June 6, 2008, the President exercised this authority and the authority vested in him under section 301 of Title 3 of the United States Code in issuing Executive Order 13465 “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System.”
73 FR 33285, Jun. 11, 2008, amending Executive Order 12989 (signed February 13, 1996, published February 15, 1996 at 61 FR 6091), previously amended by Executive Order 13286 (signed February 28, 2003, published March 5, 2003 at 68 FR 10619).
As amended, Executive Order 12989 now provides, at Section 5.(a), that “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) All persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.”
The Executive Order also requires, at Section 5.(c), that the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration “amend the Federal Acquisition Regulation to the extent necessary and appropriate to implement the * * * employment eligibility verification responsibility * * * assigned to heads of departments and agencies under this order.”
On June 9, 2008, the Secretary of Homeland Security designated the “E-Verify system, modified as necessary and appropriate to accommodate the policy set forth in the Executive Order * * * as the electronic employment eligibility verification system to be used by Federal contractors.” (See 73 FR 33837, Jun. 13, 2008.)
This final rule responds to these requirements, and the Secretary’s designation, by amending the FAR to require certain Federal contractors and subcontractors to use the E-Verify system (E-Verify) administered by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) as the means of verifying that certain of their employees are authorized to work in the United States.
Numbers USA: States Pass E-Verify Laws
WSJ: Blame the Employers
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Georgia: Security & Immigration Compliance Act – 2006 (Chapter 300-10-1)