3d Cir. Finds Anti-Illegal-Alien Ordinance Unconstitutional

In Lozano v. City of Hazelton, the Third Circuit Court of Appeals ruled that the Hazelton, Pennsylvania ordinances regarding illegal aliens were unconstitutional.  The ordinances, which had been enjoined by a federal court before taking effect, were designed to keep illegal aliens out of the town by penalizing employers who employed them and landlords who rented to them.  The court found that the ordinance conflicted with federal immigration laws and therefore violated the Supremacy Clause. The ordinances operated in part through the sanction of suspending the business license of any person or entity who hired a worker not authorized to work in the U.S.

The court explained that the Immigration Reform and Control Act of 1986 (“IRCA”), the federal law that first prohibited the employment of undocumented workers, was carefully designed to minimize the burdens imposed on both employers (who did not want to be involved in the enforcement of federal immigration laws) and on authorized workers, who might erroneously be perceived as illegal aliens and discriminated against. Accordingly, IRCA limited the types of complaints against employers that the government would investigate, the measures that employers would have to take to assure that workers are authorized to work in the U.S., and the workers to which it would apply (IRCA applies to employees only, not to independent contractors). Congress also included an anti-discrimination provision in IRCA to reduce the burden imposed on authorized workers.

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USCIS Publishes E-Verify Supplemental Handbook For Federal Contractors

Yesterday, September 8, 2009, was the official start date for the mandatory E-Verify program for federal contractors and subcontractors. The U.S. Citizenship and Immigration Services has just created and published a Supplemental Guide for Federal Contractors to explain the new requirements.

user manual

The Guide provides background information, describes the E-Verify program, and provides fairly detailed information about compliance, including timelines and charts. It is user friendly and I recommend that all employers with federal contracts or subcontracts read it to find out whether they are subject to the new rule, and if so, to learn the basics about how to comply. Federal contractors and subcontractors who are subject to the rule but who do not comply risk loss of current contracts and debarment (loss of their ability to obtain future federal contracts and subcontracts).

Related Posts:

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

News on E-Verify for Federal Contractors

Federal Contractor E-Verify Rule Is Final!

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

Mandatory E-Verify For Federal Contractors About To Begin

The start date for the mandatory E-Verify program for federal contractors and subcontractors is now set for September 8, 2009. Further postponements are not expected. The U.S. Citizenship and Immigration Services has posted a Frequently Asked Questions page to help contractors understand the new requirements, and I highly recommend that all employers with federal contracts or subcontracts read it. All employers are permitted to participate in E-Verify, but federal contractors and subcontractors who do not comply risk debarment (loss of their ability to obtain federal contracts and subcontracts).

Related Posts:

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

News on E-Verify for Federal Contractors

Federal Contractor E-Verify Rule Is Final!

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

Responding to a lawsuit, the OFCCP previously agreed to delay implementation of the new mandate that federal contractors use E-Verify.  The lawsuit, as you may recall from previous posts, was filed by the Society for Human Resource Management (SHRM), and other organizations. E-verify

The original effective date of the mandatory E-Verify requirement was January 15, 2009. That date subsequently was changed to February 20, 2009.  And, today, it appears that the start date for the mandatory use of E-Verify has been delayed again–this time until May 21, 2009, to allow the new administration time to review and evaluate the rule and the arguments against conversion to a fully mandatory E-Verify system.

News on E-Verify for Federal Contractors

Mandatory use of E-Verify has been on the agenda for several months.  Today in my inbox I found a message from the Society for Human Resource Management (SHRM), saying that SHRM, the U.S. Chamber of Commerce, Associated Builders and Contractors, the HR Policy Associate, and the American Council on International Personnel had filed suit in December in the United States District Court for the District of Maryland to stop the OFCCP from requiring federal contractors and subcontractors from using E-Verify.  E-Verify Logo RGB MASTER

On Thursday, January 8, the U.S. Department of Justice agreed to delay the effective date of the new requirement from January 15, 2009, until February 20, 2009, so that the court can conduct a hearing on the merits of SHRM’s claims. The plaintiff organizations argue in their 28-page December 23, 2008, complaint that the government has exceeded its authority by requiring government contractors to follow the new requirements to use E-Verify for not just new employees but also previously verified current employees.

For background on the E-Verify program, see:

Federal Contractor E-Verify Rule Is Final!

DOJ: How to Prevent Discrimination Arising from the Use of E-Verify

E-Verify Employer Dos & Don’ts

GAO Says Universal Mandatory E-Verify Will Be A Challenge

Federal Contractor E-Verify Rule Is Final!

The E-Verify program took center stage when federal contractors were mandated to use the system in June. The mandatory E-Verify took many federal contractors by surprise and put other employers on high alert.  The federal government issued a proposed rule on June 12, 2008, and solicited public comments. About 1,600 comments were submitted.

On Friday, November 14, 2008, the final rule for the E-Verify program was published in the Federal Register, together with summaries of the public’s comments and the government’s responses to the comments. To see the rule without the comments, go to the end of the document, but the comments and responses are helpful to the big picture.everify USHS

Here’s the bottom line. 

Starting on January 15, 2009, once you are awarded a federal contract worth more than $100,000 that has a performance term of 120 days or more, or if you have a subcontract worth more than $3,000, you will have 30 days to enroll in the federal contractor E-Verify program.  Enrolling involves signing a non-negotiable Memorandum of Understanding with the Department of Homeland Security and registering the individuals who will be using the system. I suggest that you take a look at page 5 of the E-Verify User Manual to get an idea of your options and what it will be like to use the system. The people you select to be “users” of the system will have to register and take the on-line tutorial before you can actually begin using the system.

You might want to register now and begin using the standard E-Verify system for new hires to give get a head start before the deadline. If you are already enrolled in the E-Verify program as of January 15, 2009, and you have a qualifying contract or subcontract, you will have to modify your enrollment to switch to the federal contractor version.  Within 90 days of enrollment as a federal contractor, you will have to begin using E-Verify for all new hires in the U.S. (including people who are not working directly on a federal contract), within three days after the employee begins working for pay.

There is one major difference between the federal contractor E-Verify process and the standard E-Verify process. Federal contractors will also have to run E-Verify on each current employee who was hired after November 6, 1986 and who is directly involved in work under the contract. The standard E-Verify process may be used only for new hires.

As you receive new contracts, or make new assignments of current employees to work on a contract, you will have 30 days to run those newly assigned current employees through E-Verify. You don’t have to run your current general administrative support and overhead employees through E-Verify if you don’t want to, but you will have the option of running all of your current employees through E-Verify. You might want to do this to avoid trying to figure out whether an employee is “directly” working on a contract. It’s also a good way to avoid accusations that you assigned an employee to work on a federal contract for discriminatory reasons. You have to give DHS notice if you decide you are going to use E-Verify for your entire post-11/6/86 workforce.

You will probably want to modify your employee information system now to include a way to track whether you have run each employee through E-Verify, and also (if you aren’t going to run all employees through E-Verify) to track whether the employee is working on a federal contract. You only have to E-Verify an employee one time, regardless of how many contracts the employee works on.

You will need to become familiar with some rules for avoiding discrimination while using the E-Verify. They are listed in the E-Verify User Manual. The most important ones are:

  • Employers may not verify newly hired employees selectively, and must follow E-Verify procedures for all new hires while their company is participating.
  • Employers may not request that the employee use certain documentation for Form I-9 or E-Verify purposes. (This would be considered to be “document abuse.”)
  • Employers may not use E-Verify to discriminate against any job applicant or new hire on the basis of his or her national origin, citizenship, or immigration status.
  • Employers may not use the system to pre-screen applicants for employment.
  • Employers must provide their employees with an opportunity to contest a Tentative Nonconfirmation (TNC). (This is what happens if the system finds a “mismatch” between database information and the information you submit about the employee.)
  • Employers cannot take any adverse action against an employee based upon E-Verify unless the program issues a Final Nonconfirmation.
  • Employee must continue to work during the verification process.

A good jumping off point for perusing the generous amount of information available on government websites about E-Verify is the USCIS web page.

Other related posts include:

DOJ: How to Prevent Discrimination Arising from the Use of E-Verify

E-Verify Employer Dos & Don’ts

GAO Says Universal Mandatory E-Verify Will Be A Challenge