In a statement, the immigration agency said that "the presence of illegal aliens at a business does not necessarily mean the employer is responsible," adding: "Developing sufficient evidence against employers requires complex, white-collar crime investigations that can take years to bear fruit."

Arizona may be about to test its new business license revocation law. Phoenix's famous Sheriff Joe has had his officers seize hundreds of employee records from the parent company of three Arizona amusement parks and arrested a half dozen employees suspected of identity theft violations. The Sheriff's office is investigating mismatched social security records and they say they may test the new employer sanctions law on the company.

Just got my hands on the proposed rule implementing the President's E-Verify Executive Order (thanks Naomi). A couple of items of note:

- normally, employers may only enter new employees in E-Verify; however, the proposed rule requires contractors to verify existing employees working on the government contract

- only contracts involving more than $3000 will trigger the E-Verify requirement

- subcontractors with contracts worth more than $3000 will be covered

- employers will have 30 days to enroll in E-Verify after signing a contract with the E-Verify clause in it

- agencies will have to include the E-Verify clause on any contracts awarded or solicitations issued after the rule takes effect

- the head of an agency has the power to waive the requirement

Here is the proposed rule - Download proposed_contractor_regulation.pdf

As part of its roll out of the Executive Order on E-Verify mentioned yesterday, DHS Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez have issued a joint press release giving an update on where the Administration is in achieving the 26 goals outlined last August.

The Border Fence

Approximately 330 miles of fencing have been completed. DHS believes it is on track to complete 670 miles of fencing by the end of this calendar year.

Border Patrol staffing

The number of Border Patrol agents has increased from 9,800 in fiscal year 2002 to a current number of 16,471 with an increase of more than 5,000 in the last year.

Chertoff believes that the border will be "secure" by the Border Patrol's definition sometime in 2011, perhaps earlier.

Apprehensions

The number of apprehensions has decreased, but the White House argues that this is because the enforcement measures recently enacted are having the effect of reducing the number of attempts to enter the country.

Violence at the border

In this fiscal year, there have been 744 incidents of violence against Border Patrol agents, a 26% over last year.

Western Hemisphere Travel Initiative

Slated to go in to effect at land and sea ports in June 2009. The initiative has already been implemented at airports and there has been close to 100% compliance. 200,000 applications have been received for the new pass-card being issued by the State Department beginning this month.

REAL ID

Washington state has begun issuing REAL ID-compliant licenses. New York has announced a plan to issue compliant licenses. "Other states are on the way to doing so as well" (no actual number is provided, however).

E-Verify

Approximately 10% of new hires in the country are now run through E-Verify. 70,000 employers are currently enrolled. DHS claims that 99.5% are verified instantaneously [editor's note - critics point out that this figure only includes DHS non-confirmations and not Social Security Number non-confirmations, something that appears to be a much bigger problem].

With respect to the recent Executive Order mandating federal agencies require contractors to use an electronic verification system designated by DHS, DHS designates E-Verify. Hundreds of thousands, perhaps millions, or workers will be covered by the order. Whether subcontractors will be covered will be determined when the regulation is written.

The Office of Management and Budget has just concluded its review of a proposed rule amending the federal acquisition regulation to implement the executive order.

Worksite Enforcement

90 employers convicted on criminal charges in the last year.

Legal Immigration facilitation

OPT rule released extending practical training from 12 to 29 months for student in science, technology, engineering and math fields working with an employer using E-Verify.

New H-1B rule prohibiting the filing of duplicate H-1B petitions by a single US employer for the same worker.

Employment Authorization Document validity period in adjustment cases increasing from one to two years beginning later this month.

H-2Bs - The Deaprtment of Labor porosed a rule addressing various "bureaucratic and ineffeciency concerns." DHS announced that yesterday it sent over to OMB a new proposed rule which would propose significant changes "designed to increase the effectiveness and attractiveness" of the H-2B program. The rule "eliminates certain regulatory barriers, adds protection for foreign workers, and increases efficiency and coordination." Most significantly, it would change the definition of temporary employment to recognize that some H-2B employment could last up to three years. Under the change, employers would now only need to show that a job is expected to last no more than three years rather than the current one year.

Here is the text:

DHS Designates E-Verify as Employment Eligibility Verification System for All Federal Contractors

Release Date: June 9, 2008

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

The Department of Homeland Security today designated E-Verify, operated by U.S. Citizenship and Immigration Services in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all federal contractors must use as required by Executive Order 12989, as amended. E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds.

"A large part of our success in enforcing the nation's immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal," said Homeland Security Secretary Michael Chertoff. "E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires."

President George W. Bush has amended Executive Order 12989 in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system – designated by the Secretary of Homeland Security – to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract.

In response to this Executive Order, Secretary Michael Chertoff today designated E-Verify as the system of choice to ensure that the federal government only does business with companies that agree to verify the legality of their new hires and further, that the specific employees tapped to perform contract services in the United States for the federal government are authorized to work in this country. Federal departments and agencies within the executive branch are already enrolling with E-Verify to check the status of all new hires within the federal workforce. Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days.

More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.

To view the Executive Order, please visit www.whitehouse.gov.

Wow! All businesses with federal contracts are going to have to use E-Verify. That's a lot more businesses than most people realize. The vast majority of health care employers are subject since they take Medicare. All universities that participate in the federal student loan programs are government contractors. Every business that deals with the Department of Defense will need to comply. The list will be very, very long. The order contemplates that DHS will issue a rule before agencies will begin incorporating E-Verify in to federal contracts.

Chertoff is having a news conference this afternoon.

Wow. Oklahoma passed one of the nation's toughest immigration laws and the Sooner state's legislation has been the model for anti-immigrant groups around the country. And now Robin Cauthron, a US District Court Judge, has granted a preliminary injunction suspending the law from taking force due to concerns that the plaintiffs, the US Chamber of Commerce and various civil rights groups, are "substantially likely to establish" that the Oklahoma law is preempted by the Immigration Control and Reform Act of 1986. In other words, the law appears to violate the Supremacy clause of the US Constitution. Oklahoma's governor and Attorney General, defendants in the suit, had the Chutzpah to claim that Congress actually infringed upon the lawmaking authority of Oklahoma when it passed the 1986 immigration act, a charge the judge quickly dismissed.

The decision can be viewed here. Download okahoma_preliminary_injunction.pdf

SOUTH CAROLINA

On May 29, 2008, the South Carolina Legislature passed the South Carolina Illegal Immigration Reform Act.

What obligation does the new law impose on government employers?

Beginning January 1, 2009, all public employers are required to register and participate in E-Verify.

What obligations does the new law impose on employers engaged in contracts with state agencies?

Contractors and their sub-contractors seeking to do business with state agencies must register for E-Verify or only employ workers with a valid South Carolina Driver’s license or an out-of-state driver’s license if the license requirements are as strict as South Carolina’s. The provision does not apply to contracts worth less than $15,000 for political subdivisions and $25,000 for other public employers (and employers may not divide work in order to avoid the applicability of the section. It also does not apply to contracts for the acquisition of an end product and contracts predominantly for professional or consultant services. Contractors must provide a written statement verifying compliance, though the public employer need not audit or independently verify compliance by the contractor.

Are there requirements applicable to all private employers?

All employers with more than 100 employees (and their contractors and subcontractors) must, by July 1, 2009, either use E-Verify or timely and properly complete Form I-9 documents on each employee (which is already required under current federal law). Employers may also be in compliance with the new law if they employ only workers possessing a valid South Carolina Drivers License or a license from a state with requirements at least as strict as South Carolina. This provision of the new law will apply to employers with less than 100 employees beginning July 1, 2010.

There is now a general requirement stating that a private employer shall not knowingly or intentionally employ a person who is not lawfully present in the US.

When does the new law take effect?

Under the provisions of the law relating to contractors with public employers, subcontractors with five hundred or more employees must comply by January 1, 2009. For those with 100 to 500 employees, they new law takes effect July 2009. For everyone else, the law takes effect on and after January 1, 2010.

Is there a safe harbor for employers in the new law?

Yes. Employers complying with the E-Verify or driver’s license requirement may not be sanctioned under the contractor section of the new law. Private employers subject to the general section applicable to all private employers with 100 or more employees are also provided a safe harbor if they are in compliance with I-9 rules.

Are there penalties for those filing false complaints?

Those making false reports shall be guilty of a felony and imprisoned for up to five years.

What is the new requirement for reporting violations?

The State’s Commissioner for Minority Affairs is required to set up a 24 hour hotline to receive allegations of federal work authorization program violations and the department shall, in turn, relay the information to the appropriate law enforcement agency.

What does the new law change with respect to deducting wages paid to unauthorized employees?

The new law bars after January 1, 2009, the deduction of wages paid to persons not authorized to be working in the US except where after a reasonable investigation, the employer did not know or should not have known the worker was unauthorized. The provision only applies to individuals hired after January 1, 2009 and does not apply to any individuals with a valid South Carolina driver’s license or license issued by a state with license requirements as strict as South Carolina’s.

What is the new transporting bar contained in the new law?

It is now a state law felony to transport, shelter, harbor or conceal unauthorized individuals knowingly or in reckless disregard of the fact that the person is illegally present in the US. Fines range from $3000 to $5000 and guilty parties may be subject to imprisonment for up to five years. Also, persons convicted under the law are barred from receiving a professional license in South Carolina.

What does the new law change with regard to identity theft?

Individuals who engage in identity theft for the purpose of working in the US must pay restitution to the state for any benefits received as a result of benefiting under any state programs and individuals suffering any harm as a result of such identity theft may now bring a private cause of action and claim triple damages and attorney fees.

Does the law give any rights to discharged US workers?

Yes. Employees who are replaced by unauthorized workers when the employer knows the replacement worker is unauthorized shall have a civil right of action for wrongful termination. The replacement must have occurred within 60 days of the termination, the replacement worker must not have been authorized at the time of the replacement, the employer must have known the replacement worker’s status and the replacement worker must perform the same duties and have the same responsibilities as the terminated employee. Employees successful in such a suit can seek reinstatement in the position, actual damages and attorney fees. The claim must be made within a year of the date of the alleged violation.