Thanks to my friend Dan Kowalski for forwarding this to me. And good luck to Dan on his new position as a partner with Reina, Bates and Kowalski!

E-Verify Contractor postponement -

The litigants in the case over the legality of the E-Verify federal contractor have agreed to push back the effective date of the rule from June 30th until September 8th to give the new Administration more time to review the case and determine its position. This is the third extension.

The LA Times reports that 124,000 employers across the US are enrolled in E-Verify with 10,000 of them in California. 1,000 new employers are signing up each week.

Jose Humberto Gonzalez, human resources manager at Howard Industricts, Inc. has been indicted for his role in hiring illegally present workers at his employer. Howard Industries in Laurel, Mississippi was raided last year in the largest worksite raid in US history. 595 workers were arrested including nine for identity theft. Presumably, the identity theft charges are under scrutiny given the Supreme Court decision ruling the use of that statute in immigration proceedings is often inappropriate.

Henry Fischer, a Kentucky builder whose company experienced worksite raids that resulted in the arrests of 76 workers, held a news conference to coincide with the publication of a book criticizing the government over the raids. The book's forward notes Fischer's fears of retaliation for speaking out:

"It has now been three years since the federal government raided Fischer Homes and tried to ruin the company I founded and the lives of many Fischer Homes associates," Fischer wrote. "While there will never be a time when releasing this story is risk-free from government retaliation, I now believe the need to get the Fischer Homes side of the story out to our customers and our friends outweighs the risks."

The Orange County Register's Cindy Carcamo talks to Southern California employers. The consensus is support in general for going after employers knowingly violating immigration laws as long as employers are not liable for workers presenting fraudulent documents.

The effective date is pushed back to June 30th while the Obama Administration formulates its position on the issue. The regulation is the subject of litigation challenging the manner in which the rule was rolled out.

West Publishing has added a book on new state employer compliance laws to its library. This comprehensive book is very timely since state employer compliance laws have proliferated in the last two years and more than two dozen states now impose additional immigration requirements on their employers. The book is authored by Austin Fragomen, Careen Shannon and Daniel Montalvo who have authored a number of other successful immigration titles for West.

The book is fairly comprehensive. It includes summaries of all of the state laws as well as the text of the statutes. It also provides citations and web addresses, a helpful feature.

Many have questioned the constitutionality of these new laws. Is it not the role of Congress to regulate immigration law and not state legislatures? The new Fragomen book does discuss this question in some detail and also provides general background on recent federal enforcement efforts.

The book retails for $325 and is available here.

The Rhode Island General Assembly's Labor Committee has passed a bill by a 11-3 margin that would require employers to sign a pledge that all of their workers are legal. Employers would then be liable for criminal penalties if they are later found to have violated the pledge.

From the NY Times:

The Supreme Court ruled unanimously on Monday that the federal government has been going too far in using identity-theft laws to prosecute undocumented workers who use fake identification to get and hold jobs.

In limiting the use of a law enacted in 2004 that has become a favorite weapon of the authorities who go after illegal immigrants, the justices said that to use it, a prosecutor must be able to show that a defendant knew that the identification he used actually belonged to another person.

The ruling in Flores-Figueroa v. United States, No. 08-108, was written by Justice Stephen G. Breyer and relied heavily on the wording of the statute, specifically its language regarding when a defendant can be properly accused of “knowingly” and unlawfully using another person’s identification.

“As a matter of ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime,” Justice Breyer wrote, going on to discuss transitive verbs, their objects and the appropriate placement of adverbs.

The decision was 9-0, a resounding defeat for Immigration and Customs Enforcement.

In a number of high profile work site raids over the past few years, DHS has used or threatened to use identify theft in order to criminally prosecute illegally present workers as opposed to the traditionally used deportation process.

I don't think identity theft prosecutions are going to end. In fact, one of the consequences of the expansion of E-Verify and the eventual publication of a social security no-match rule is that there will be MORE pressure to engage in identity theft. If workers find that merely providing a bogus social security number and a bogus identification document are not enough to get through the verification system, then it is more likely the worker will try and get a name and a number that actually match and assume that identity. E-Verify and the no-match rule won't necessarily catch these kinds of cases.

The case requires a showing that an employee had actual knowledge that the identity was stolen and in a case, for example, where a person assumes both a false name and a false social security number, prosecutors may still seek criminal charges, especially if they have evidence to independently support the claim that the worker knew.

But cases like Postville where employees quickly pleaded guilty to criminal identity theft charges based on little more than the evidence that the worker used a false document are going to be less likely in the future.

[UPDATE: Here is the actual case]

Flores-Figueroa v. United States - Free Legal Forms

Arizona Democrat Gabrielle Giffords and Republican Sam Johnson proposed a bill in the US House of Representatives that would replace E-Verify with a new electronic system. The bill, H.R. 2028, entitled the New Employee Verification Act ("NEVA"), would rely on state child support verification systems. SHRM describes the plan:

Under NEVA, employers would be required to use their state’s “new hire” reporting process (currently utilized for child support enforcement) to begin the new electronic verification process. This would allow employers to confirm the work eligibility of U.S. citizens and non-citizens in the most appropriate and reliable ways:

For U.S. citizens, employers would use the Social Security Administration database;

For non-citizens, employers would use the U.S. Department of Homeland Security (DHS) database.

H.R. 2028 also would establish a voluntary biometrics option that employers could choose to use in the verification process. This system would include a standard background check and the collection of a “biometric” characteristic — such as a thumbprint — to secure an employee’s identity and prevent the illegal use a Social Security number, stolen or fraudulently-obtained drivers’ license, or other altered identification documents.

To protect employers from liability, the legislation would provide a safe harbor for the hiring of an undocumented worker whose identity was verified through the system.

Other key advantages of NEVA over the federal government’s E-Verify program include:

Allows all employment verification requirements to be completed electronically, as well eliminates the current Form I-9.

Applies only to newly hired employees and would not require employers to re-verify existing employees, as is required by other bills pending in Congress.

Allows employers to check the employee through the electronic system beginning on the date of hire and ending at the end of the third business day after the employee has reported to work.

Provides that federal immigration law pre-empts any state law with regard to employer fines or sanctions for immigration-related issues, or in requiring employers to verify work status or identity for work authorization purposes.

Requires employers to be responsible only for the hiring decisions of their own employees, not those of their subcontractors.

This is a pretty thoughtful analysis that discusses the good and bad points of E-Verify, looks at how the mandatory E-Verify program is going in Arizona and discusses proposals to improve the electronic employment verification system. Definitely worth the read if you're following this topic.

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