Global Mobility & Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Mobility & Immigration Counsel

By Suzanne Potter-Padilla

On February 27, 2013, the House Judiciary Committee’s Subcommittee on Immigration and Border Security heard testimony regarding improvements made to E-Verify. While committee members acknowledged that E-Verify still suffers from some shortcomings, the message coming out of the hearing was clear that businesses in the U.S. had adapted to using E-Verify and are happy with its results. A representative from U.S. Citizenship and Immigration Services (USCIS) testified that E-Verify use has expanded to 432,000 employers, compared to only 24,000 in 2007. She also testified that surveys taken of its employer users indicate that the majority are confident in E-Verify’s accuracy and would recommend it to other employers.

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By Scott Decker

Two immigration reform bills recently introduced in the U.S. Senate will likely be included in the comprehensive immigration reform discussions currently underway in Congress. One is a “carrot,” providing additional visas for foreign investors, and the other is a “stick,” providing enhanced verification of workers’ employment authorization.

On January 30, 2013, Senators Mark Udall (D–CO) and Jeff Flake (R–AZ) announced their intention to reintroduce the bipartisan Startup Visa Act. The proposed bill would create an employment-based immigrant visa for alien entrepreneurs who have received significant capital from investors to establish a business in the United States. Under this proposal, immigrant entrepreneurs and foreign graduates of U.S. universities could apply for a two-year visa on the condition that they secure financing from a qualified U.S. investor and can demonstrate the ability to create U.S. jobs.

On January 31, 2013, Senator Charles Grassley (R–IA) introduced S. 202, the Accountability Through Electronic Verification Act of 2013. This bill proposes to expand the use of E-Verify, a voluntary internet-based system that allows businesses to determine the employment eligibility of their workers by comparing information reported on an employee’s Form I-9 to information in databases maintained by the Department of Homeland Security and the Social Security Administration. The Act would make use of the E-Verify program mandatory for all employers, allow employers to use E-Verify before a person is hired, and require employers to check the status of all current employees within 3 years. Moreover, employers would be required to terminate the employment of those found unauthorized to work due to a check through E-Verify.

Additional immigration-related bills are expected to be introduced in the coming weeks, consisting of additional “carrots” and “sticks.”  

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By Michelle Valerio

A group of Democrat and Republican senators released the Bipartisan Framework for Comprehensive Immigration Reform, the latest bipartisan effort for comprehensive immigration reform to fix the broken U.S. immigration system. Although the legislation is not drafted yet, the framework of the plan is based on the following four principles:

1. Providing a path to citizenship for unauthorized individuals currently residing in the United States, contingent upon improving border security and combating visa overstays.
2. Reforming the immigration system to improve the U.S. economy and strengthen American families.
3. Creating a mandatory electronic employment verification system – this system would differ from E-Verify, which is mandatory only for federal contractors and in some states.
4. Improving the process for issuing nonimmigrant work visas (i.e., H-1B, L-1, etc.).

The plan was made public today. The draft legislation is not expected to be unveiled until March, with the expectation that it will be voted on that month. President Obama is scheduled to speak tomorrow in Las Vegas, Nevada, where he is expected to provide a blueprint for his own immigration reform proposal.

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By Michael J. Lehet

Launched in March 2011, and subsequently available in 21 states plus the District of Columbia, E-Verify Self Check is now accessible in all other states plus Guam, Puerto Rico, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. Self Check is available in both English and Spanish.

A part of E-Verify, Self Check allows individuals to confirm their eligibility to work in the United States by entering the same information used by employers in performing E-Verify inquiries (i.e., name, address, date of birth, Social Security Number, citizenship, and identity and work authorization credentials). Self Check compares this information against the same databases utilized by E-Verify to confirm employment eligibility. According to U.S. Citizenship and Immigration Services, Self Check benefits both workers and businesses, taking the “mystery” out of the employment eligibility verification process and allowing workers to resolve records discrepancies before accepting a new job. Importantly, Self Check is voluntary. Therefore, employers are prohibited from requiring applicants or employees to use the system.

A recent survey found an increase in the percentage of employers using E-Verify to confirm the work authorization of employees. Of those surveyed in 2011, 51% indicated they use E-Verify, as opposed to 28% in 2010.
 

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Alabama gained notoriety in June when Governor Robert Bentley signed into law HB 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. HB 56 quickly gained a reputation as the most aggressive in a long line of state immigration legislation and attracted interest (and ire) from the federal government, immigrant rights groups, and others. A recent federal court decision has halted implementation of certain provisions of the Act, but the central requirement that employers use E-Verify remains intact and on schedule. To learn more about the decision, the E-Verify requirements, and their implications for employers, please continue reading Littler's ASAP, Despite Legal Challenge, Effective Date Approaches for Key Provisions of Alabama Immigration Legislation, by Jorge Lopez and Patrick Simpson.

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HireRight, an international employment screening provider, recently released its 2011 Employment Screening Benchmarking Report (available here). The report, in part, examines employer use of E-Verify, the federal electronic employee verification system. Of the 1,800 human resources, talent management, recruiting, security, safety and compliance professionals surveyed, 51% indicated that they use E-Verify, as compared to 28% in the 2010 report.

Other findings in the 2011 report include:

• 11% of those surveyed reported that although they are not currently using E-Verify, they plan to use it in the future.
• 60% of respondents store Form I-9s exclusively in paper form, 12% digitally store, and 27% use a combination of both. According to HireRight, employers using a paper-based I-9 process are more likely to experience errors, thereby increasing the risk of noncompliance.
• 69% of respondents reported feeling completely or very prepared for a U.S. Immigration and Customs Enforcement (ICE) Notice of Inspection or audit.

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As reported by the Wall Street Journal, the Legal Workforce Act (H.R. 2885) (pdf), which would require that employers use E-Verify to authenticate individuals’ legal work status, has produced one of the more unusual opposition coalitions, given the current political climate: conservative, tea-party, libertarian and liberal groups all oppose the measure. The groups have voiced their opposition in letters to lawmakers, and one group took an ad out on Politico, a multimedia news outlet covering politics.

On September 21, 2011, the House Judiciary Committee approved the bill, which was sponsored by Judiciary Chairman Lamar Smith (R-TX). Rep. Smith had previously called on President Obama to include a similar provision in the American Jobs Act.

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On September 6, 2011, the California State Senate passed Assembly Bill 1236 (AB 1236), the Employment Acceleration Act of 2011, which now heads to Governor Jerry Brown. The Act
prohibits the state, counties, cities and special districts from mandating that employers use an electronic employment verification program (such as E-Verify), except when required by federal law or as a condition of receiving federal funds. The Act’s prohibition on mandating use of an electronic employment verification program specifically applies in the following circumstances:

• as a condition of receiving a California government contract;
• as a condition of applying for or maintaining a business license; or
• as a penalty for violating licensing or other similar laws.

The findings and declarations set forth in AB 1236 include, among others:

• E-Verify’s inaccuracies have prevented employers from hiring employees “in a timely manner;”
• had E-Verify been mandatory in 2010 it would have cost employers $2.7 billion; and
• the net societal cost of all federal contractors using E-Verify would be $10 billion per year, according to a U.S. Chamber of Commerce estimate.

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Representative Lamar Smith (R–TX) has called on President Obama to include in the American Jobs Act a provision mandating that employers use E-Verify, the electronic employment authorization program. Responding to Obama’s September 8, 2011, jobs speech, Smith stated: “[I]f President Obama is indeed focused on putting 23 million unemployed or underemployed Americans back to work, there is one element that is missing from his jobs plan: a federal E-Verify requirement. This is one of the best options available to put unemployed Americans back to work.” The E-Verify program has been criticized by many, including Obama, for problems with its accuracy.

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By Kelly Reese

On August 29, 2011, U.S. District Judge Sharon Blackburn temporarily enjoined the enforcement of Alabama’s recently enacted immigration law, House Bill 56 (HB 56), which was due to take effect September 1. The injunction will remain in effect until the court enters its ruling on the preliminary injunction or until September 29, whichever comes first. Judge Blackburn’s Order (pdf) states that the court will rule on the merits of the pending Motions for Preliminary Injunction no later than September 28.

The U.S. Department of Justice (DOJ) filed the lawsuit in the U.S. District Court (Northern District of Alabama) against the State of Alabama, alleging that HB 56 is preempted by federal law. The DOJ asked the court to find HB 56 invalid, null and void; and sought a preliminary and permanent injunction prohibiting its enforcement.

Two similar lawsuits, also seeking preliminary and permanent injunctions prohibiting enforcement of HB 56, were filed by religious and public interest entities. Those two cases have been consolidated with the DOJ lawsuit.

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In March 2011, the Department of Homeland Security launched the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. When unveiled, the program’s availability was limited to a handful of states. However, as of August 15, 2011, Self Check is available in 21 states, including the nation’s three most populated: California, Texas, and New York. Additionally, Self Check is now available in Spanish.

Self Check, which is a free service, allows individuals to compare their information to the same databases that E-Verify accesses, giving them the chance to address any existing data mismatches before they are hired by an employer that participates in E-Verify. United States Citizenship and Immigration Services will continue to evaluate and improve Self Check, which it intends to expand nationwide by spring 2012.

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During a recent White House press conference, President Obama was asked whether he would veto a mandatory E-Verify bill that did not include immigration reform provisions. Without directly answering the question, Obama stated, “We may not be able to get everything that I would like to see in a package, but we have to have a balanced package.” Though Obama acknowledged that the E-Verify employment authorization system can be “an important [immigration] enforcement tool,” he added a caveat – “if it’s not riddled with errors.”

Skepticism surrounding E-Verify’s accuracy is not new. The Department of Homeland Security and U.S. Citizenship and Immigration Services have been gradually making improvements to the E-Verify system, many of which are intended to improve its accuracy rate.

The need to attain an acceptable level of accuracy grows as the number of E-Verify users expands. Computerworld reports that more than 250,000 U.S. employers have already signed up for E-Verify, with another 1,300 new businesses enrolling each week. State and local legislation mandating E-Verify use is continually rising. Additionally, in June 2011 two bills were introduced in Congress that would require all employers to use E-Verify. 

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Building on changes made in June 2010 to enhance the E-Verify web interface’s usability, security, accuracy and efficiency, U.S. Citizenship and Immigration Services (USCIS) recently announced further improvements, including:

• the ability to verify applicants’ driver’s license information;
• less strict entry requirements for U.S. passport and visa number information;
• improved messages that guide employers towards creating qualifying passwords;
• upgrades to the user registration process concerning additional users;
• the ability to select a future hire date;
• a “help” icon linking to instructions and information;
• an upgraded “case details” screen, making it easier to locate detailed case information;
• interface enhancements, e.g., sorting client companies alphabetically, to increase the efficiency of the case creation process for E-Verify employer agent users.

An employer’s existing user ID and password remain valid, and all pre-update case information will be available upon login. However, upon the first login to the enhanced website, users will be required to take a short tutorial to learn about the changes.

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Alabama is now the most recent state to require all employers to enroll in and verify employment eligibility through E-Verify. This requirement goes into effect on April 1, 2012. The new law prohibits all Alabama employers, public and private, from knowingly employing unauthorized aliens. Additionally, the law prohibits state government entities from awarding contracts or providing grants or other incentives to employers that fail to enroll in and verify employment eligibility through E-Verify. This provision goes into effect on January 1, 2012. Violations of the law can result in significant penalties for employers. The new law also creates a state law cause of action for U.S. citizens and authorized aliens against employers that refuse to hire or that discharge them while knowingly or negligently employing unauthorized aliens. To learn more about the new law and its implications for employers, please continue reading Littler's ASAP Alabama Is Latest State to Enact E-Verify Requirement by Kelly Reese.

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A bill that would expand the E-Verify employment verification system and require its use by all employers was reintroduced in the House on May 26. Introduced by Rep. Health Shuler (D-NC) and cosponsored by 37 others, the bipartisan Secure America through Verification and Enforcement (SAVE) Act (H.R. 2000) would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires. To learn more about the bill and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

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Georgia Governor Nathan Deal has signed into law House Bill 87 (pdf), a sweeping, Arizona-style immigration enforcement bill that, among other provisions, requires employers to use E-Verify, the federal electronic employment authorization program. Provisions of the “Illegal Immigration Reform and Enforcement Act of 2011” affecting private employers amend the Georgia Code as follows:

• Private employers must register with and use E-Verify to confirm new hires’ legal work status under the following deadlines:
  • Employers with 500 or more employees must comply by January 1, 2012.
  • Employers with more than 100 but less than 500 employees must comply by July 1, 2012.
  • Employers with more than 10 but less than 100 employees must comply by July 1, 2013.
• Business licenses, occupational tax certifications, and other documents required to operate a business will not be issued until the employer submits an affidavit attesting that it utilizes E-Verify or is exempt from the requirement (because it employs fewer than 11 employees or otherwise does not fall within the statute’s requirements). The Georgia Attorney General’s Office will provide a form affidavit for this purpose.

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The Florida House of Representatives’ Economic Affairs Committee recently approved a bill, HB 7089, that would require all employers in the state to use E-Verify to authenticate newly hired employees’ legal work status. The bill does not require employers to verify current employees’ status.

The proposed law would prohibit an employer from “knowingly” employing an unauthorized alien, and violators would be subject to administrative investigation and possibly administrative and civil actions and penalties. Additionally, a business failing to use E-Verify would lose its business license until it registers to use E-Verify and provides the appropriate licensing agency an affidavit demonstrating such registration. Noncompliant government contractors would have their contracts rescinded and become ineligible for future public contracts.

As reported in The News-Press, the bill faces opposition on many fronts, including labor and business groups. Representatives of Florida’s agriculture and tourism industries contest E-Verify’s efficiency and contend that the bill would damage these industries. Additionally, immigrants staged a pray-in during the Economic Affairs Committee hearing. 

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On March 3, 2011, the Georgia House of Representatives passed, by a 113-54 vote, House Bill 87 (pdf), an immigration enforcement bill that, among other provisions, would require employers to use E-Verify to authenticate their new hires’ legal work status. The bill, known as the Illegal Immigration Reform and Enforcement Act of 2011, now moves to the Senate, where a committee endorsed a similar measure on March 2. As reported by the Atlanta Journal-Constitution, HB 87’s controversial provisions, such as authorizing state and local police to verify the immigration status of certain criminal suspects, prompted “hundreds” of demonstrators to gather outside the Georgia Capitol during the House debate to “denounce the measure as an ‘Arizona copycat law.’”

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On February 10, the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement held a hearing, “E-Verify – Preserving Jobs for American Workers,” in which it considered whether to make E-Verify mandatory for all employers. House Judiciary Committee Chairman Lamar Smith (R–TX ) favors the idea, as does the Subcommittee’s Chairman, Representative Elton Gallegly (R–CA). In introducing his reasons for supporting the expansion of E-Verify electronic employment verification program, Representative Smith stated: “With unemployment over 9% now for 21 months, jobs are scarce and families are worried. According to the Pew Hispanic Center, seven million people are working in the U.S. illegally. These jobs should go to legal workers.”

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The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

The Self Check program is a two-stage process: Stage 1 requires users to verify their identities; Stage 2 examines whether the individual is legally authorized to work in the United States.
 

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Florida recently became the 14th state to require government employers and contractors to use E-Verify to confirm employees’ legal work status. On his first day in office, January 4, 2011, Governor Rick Scott signed Executive Order Number 11-02, which took effect immediately and requires:

• all state agencies under the direction of the governor to verify employment eligibility of all current and prospective employees through E-Verify; and
• that such agencies’ contracts contain an express requirement that contractors use E-Verify to confirm the legal work status of: (1) their employees on public works projects in Florida; and (2) all persons, including subcontractors, assigned by the contractor to work on those projects.

Additionally, the order states that agencies not under the direction of the governor are “encouraged” to use E-Verify to verify current and prospective employees’ legal work status, and to require the same of those agencies’ contractors and subcontractors.

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With uncertainty surrounding immigration reform at the federal level, a growing number of immigration reform proposals are being made at the state level, many of which borrow measures from Arizona’s controversial SB 1070. Examples of recent immigration enforcement proposals include:

• A group of Republican lawmakers in Colorado, some of whom traveled to Arizona to learn more about its approach to immigration legislation, are discussing what should be included in immigration-related bills to be introduced in early 2011. One bill is expected to require Colorado employers to use E-Verify.
• In Florida, a senator has introduced a bill that would allow law enforcement officers—during a lawful detention or arrest—to ask for immigration documents if the officer suspects the detainee may be in the country illegally. The bill prohibits officers from using race as a reason for checking the detainee’s documentation.
• In Nevada, an assembly member has asked the state’s Legislative Counsel Bureau to draft a bill based on Arizona’s SB 1070; another assembly member has requested a bill requiring state employers to use E-Verify.
• Two senators in South Dakota are drafting a bill that would prohibit providing transportation or lodging to an individual known to be in the United States illegally. The bill also would prohibit illegal immigrants from asking for employment.
• In California, proponents of an SB 1070-style initiative have started collecting signatures in an effort to put the initiative on the February or June 2012 ballot.

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The Fresno Bee reports that some employers, particularly within the agriculture industry, will not use E-Verify, the federal electronic employment verification system, to authenticate new hires’ legal work status. Relying on figures provided by the federal government, the paper states that “[o]ut of thousands of businesses in Fresno, for example, only 179 use the program… although those numbers don't account for businesses that contract with personnel companies using the program.” Businesses cite two main reasons for their non-participation in E-Verify: (1) administrative burden; and (2) a shortage of available legal workers.

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Politico reports that candidates in 20 (out of 37) of this year’s gubernatorial races favor tough anti-immigration measures, be they a Democrat, Republican, or third-party candidate. Not all initially campaigned in support; however, conversion is unsurprising given candidates’ desire to secure the confidence, and votes, of an electorate that, recent polling data suggests, increasingly favors tougher immigration laws.

Jobs remain scarce, benefits are decreasing, and supporters of strict immigration laws believe such measures will improve the outlook for both. Moreover, many voters are dismayed by the stalled federal immigration reform and, accordingly, are pressing state officials to take up the legislative mantle. Politico anticipates that, if these candidates prevail, there will be a surge of legislation mandating that employers use E-Verify to authenticate workers’ legal status, as well as of legislation concerning immigration status in relation to drivers’ licenses, public assistance, and education.

Image credit: 3dbrained

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Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers.

Pennsylvania

House Bill 1502 would require all contractors and subcontractors on public works projects to verify the employment eligibility of new employees through E-Verify, the federal electronic employment verification system, and to verify existing employees’ Social Security numbers. In June 2010, this bill was referred to the House State Government Committee.

House Bill 1503 would require all construction industry employers to verify the employment eligibility of new employees through E-Verify and to verify existing employees’ Social Security numbers. This bill was passed by the House in June 2010 and is currently in the Senate Labor and Industry Committee.

Employers that in good faith rely on federal programs (E-Verify and the Social Security Number Verification Service) to verify new employees’ legal work status and existing employees’ Social Security numbers will be immune from sanctions. However, employers face debarment from public work contracts (HB 1502) or license forfeiture (HB 1503) for noncompliance. Additionally, employers could face civil liability for retaliating against employees who complain about alleged violations or participate in investigations, hearing or inquiries concerning alleged violations.

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According to the Salt Lake Tribune, since the July 1, 2010, effective date of a Utah law requiring businesses with 15 or more employees to verify new hires’ work status through E-Verify, less than one-third have done so. The figure did not surprise Utah Governor Gary Herbert, who stated that even the law’s sponsor did not expect universal compliance. Some suggest that employers either do not know about the new requirement to use the federal electronic employment verification system, or are not hiring due to poor economic conditions, which could explain the low enrollment numbers.

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The Department of Homeland Security (DHS) will be implementing additional requirements for employers who register for the E-Verify electronic employment verification system, in order to provide additional protection for employees’ personal information. Previously, registering employers provided E-Verify with their business name, business address, mailing address, phone number and other information, which was then compared to information already in E-Verify’s system in order to prevent duplicate registrations. Now, according to the DHS’s June 2010 Privacy Impact Assessment Update (pdf), employers wishing to register for E-Verify will be required to provide the following additional information:

• the employer’s “doing business as” (DBA) name (if applicable);
• the employer’s DUNS number (the Dun and Bradstreet identifier) (if applicable);
• the name of the employer’s administrator; and
• the name of the employer’s parent organization (if applicable).

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With the July 2, 2010 submission deadline approaching, individuals in Washington are trying to collect 241,153 signatures to place an immigration-related measure on the November ballot, reports the Seattle Times. Employment-related provisions of proposed initiative I-1056 (pdf) include:

• Requiring all employers, after making an offer of employment, to verify the individual’s eligibility to work in the United States, using programs such as E-Verify.
• Making it an unlawful employment practice to terminate a U.S. citizen, or a permanent resident applying for naturalization, when an illegal alien is employed at the same job site or in a similar position at a different site.

Since 2006, similar measures have failed to get certified, and the chances for a 2010 measure are slim, given the campaign’s lack of funds and the absence of major party support for the measure.
 

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United States Citizenship and Immigration Services (USCIS) has announced the June 13 launch of a newly-designed E-Verify website. Highlights of the redesign include:

• icons accompanying case statuses to make it easier to identify cases requiring attention;
• the ability of businesses to view their Memorandum of Understanding (MOU) electronically; and
• simplified terms to better guide users through the process.

Existing users’ IDs and passwords remain valid, and all open cases will be accessible via the new platform. When users log on to the new E-Verify website, they will be required to take a short tutorial about the changes.

E-Verify is an electronic employment verification system, operated by the U.S. government, allowing employers to verify that individuals are legally permitted to live and work in the United States.

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Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the “broadest and strictest immigration measure in generations.” The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure’s legality.

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The city council of Santa Maria, California approved a measure to use E-Verify when it hires new employees, reports the Santa Maria Times. The city will commence a six-month trial of the federal electronic employee verification system on May 8, 2010. It is uncertain, however, how often the city will use E-Verify because it is currently furloughing employees to save money.

Some officials and residents supported mandating E-Verify for private businesses as well. However, full council support was lacking, and many community organizers and residents spoke against the proposal.

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Coastal Steel and Acoustics became the first company in South Carolina to sign an IMAGE agreement (Immigration and Customs Enforcement Mutual Agreement between Government and Employers), the agency announced. By signing the agreement, the company:

• will receive agency-provided training and education on fraudulent document detection, as well as on proper hiring and anti-discrimination procedures;
• can use E-Verify, the federal electronic employee verification system, and the Social Security Number Verification Service; and
• can become “IMAGE certified” by following the Department of Homeland Security’s Best Employment Practices.

IMAGE was initiated in 2007 to combat unlawful employment and reduce vulnerabilities that help illegal immigrants gain employment in the United States.

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The Wall Street Journal reports that a mandatory biometric identification card for U.S. citizens and legal residents could be included in a comprehensive immigration reform bill being spearheaded by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC). The card would contain standard identifying information, but would also contain a biometric identifier, e.g., fingerprints. Schumer has previously proposed such a card to replace E-Verify, the federal electronic employment verification system.

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According to the Wall Street Journal, an independent report commissioned by the Department of Homeland Security (DHS) found that E-Verify, the federal electronic employment verification system, may be failing to detect 54% of unauthorized workers processed. According to the 338-page report (pdf), E-Verify experienced difficulty confirming that workers’ identities were their own. The purported reason: identity theft.

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As reported by The Washington Times, the Social Security Administration (SSA) failed to run electronic employment verification (E-Verify) checks on 19% of the employees it hired in 2008 and 2009. The SSA, along with U.S. Citizenship and Immigration Services, administers the E-Verify program.

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Businesses in the southern California city of Lancaster will be required to use E-Verify to confirm new hires’ eligibility to legally work in the United States, according to the Los Angeles Times. Companies that fail to comply with the requirement could face revocation of their business license. At least 11,000 California business are already enrolled in the E-Verify program, which processed over 8.5 million queries in fiscal year 2009.

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As reported previously on this blog, U.S. Citizenship & Immigration Services (USCIS) officially announced the opening of a new Verification Operations Center in Buffalo, NY. This center will employ approximately 135 people with the sole objective of performing immigration status verification for the Systematic Alien Verification for Entitlements (SAVE) and E-Verify systems. Specifically, the new center will run verification checks of employee work authorization status for companies enrolled in E-Verify, and it will confirm immigration status inquiries for government entities using SAVE. This is the first USCIS field office dedicated to monitoring compliance and ensuring the correct use of the SAVE and E-Verify programs. The Buffalo Verification Operations Center will spearhead USCIS's initiative to stop employers and third-party "investigation" companies from using E-Verify improperly. This development is the government's attempt to improve the integrity of both SAVE and E-Verify. These efforts may also facilitate the reduction of potential discriminatory effect in the application of E-Verify procedures and safeguard privacy interests.

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that today (November 19, 2009), an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.

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As reported by Nextgov.com, a Government Accountability Office (GAO) report suggests that the Social Security Administration (SSA) will need to upgrade its information technology systems to handle future electronic information exchanges. Currently the system operates more than 800 data exchanges that allow SSA to send and receive electronic information to and from state and local partners. The data exchanges are used for processing and distributing Social Security payments and validating identities of driver’s license applicants.

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Examiner.com reports that California’s legislature has passed a non-binding resolution condemning federal immigration policies, practices and enforcement. The resolution, drafted by California State Senator Gilbert Cedillo, urges Congress and President Obama to declare a moratorium on immigration policies and practices until comprehensive immigration reform is enacted.

Although the resolution has no legal effect, opponents contend that a moratorium would negatively impact public safety. Anti-immigration advocates assert that the resolution’s sentiment does not represent that of the majority of Californians and that illegal immigrants would benefit from the proposal.

The resolution notes the financial contributions of immigrants (documented as well as undocumented), while criticizing various actions such as employer audits and, particularly, the E-Verify system. 

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The New York Times reports that President Obama’s approach to immigration enforcement has remained similar to that of his predecessor. Employee paperwork audits have been conducted at hundreds of businesses and prosecutions for immigration violations have increased. E-Verify, the federal program that allows employers to check applicants’ work authorization status, has been expanded, as has a cooperative program between federal, state, and local officials that runs immigration checks on individuals booked at certain local jails.

The reliance on holdover policies has upset immigrant and Latino advocates, key supporters of Obama’s election, who believed the new administration would take a different, less harsh approach. Although administration officials state that they have backed away from unpopular mass factory roundups of illegal immigrants, advocates contend that the administration’s continuation of existing programs will result in further ethnic profiling and civil rights violations.

As previously discussed, Democrats are planning to introduce an immigration reform bill sometime this year or in early 2010. Anticipating a legislative battle, influential party members have suggested members alter their language when discussing the issue—e.g., abandoning the term “undocumented” in reference to illegal immigrants—to demonstrate their commitment to preventing illegal immigration and strengthening immigration enforcement.

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Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act, will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.

The proposed legislation would:

• Require all employers to use either the Electronic Employment Verification System (based on the new-hire system used to enforce child support payments) or the Secure Electronic Employment Verification System (which would authenticate an employee’s identity using biometric information). Data for recently hired employees would be checked against Social Security and Department of Homeland Security databases to determine work eligibility.
• Eliminate the I-9 immigration form.
• Establish civil and criminal penalties for employers that knowingly hire illegal immigrants.
• Establish federal preemption of state laws on employment verification.
• Require that the Social Security database, which has a 4.1% error rate, be cleaned up before the new system takes effect.

Giffords and Johnson have collaborated on the legislation with The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management.

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