Department of Homeland Security ("DHS") Secretary Janet Napolitano, on Wednesday, July 8, 2009, announced the DHS's intention to rescind the Bush-era Social Security No-Match Letter rule. The No-Match letter rule established a 'safe harbor' procedure that would have established a 90-day window for employers to resolve employment eligibility issues or terminate the employee in question. The No-Match rule has never been implemented due to a court order and legal challenge still pending in the U.S. District Court for the Northern District of California.
In addition to announcing the rescinding of the No-Match rule, Secretary Napolitano also announced the Administration's support for the federal contractor E-Verify rule that is due to be implemented on September 8, 2009. E-Verify is the free internet-based employment eligibility verification system operated by the U.S. Citizenship and Immigration Services ("USCIS") division of the DHS in cooperation with the Social Security Administration. For additional information regarding the federal contractor rule click here.
In commenting on this support for the federal contractor rule, Secretary Napolitano said, "E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce." This move to implement the federal contractor rule, in addition to the recently announced Immigration and Customs Enforcement I-9 audit initiative, continues to underscore this Administration's efforts to direct immigration law enforcement activities at employers.
If you are an employer who will become subject to the new federal contractor rule, you should begin now to enroll, train, and acquaint yourself with the new federal contractor rule. While the E-Verify system is relatively easy to operate, the ultimate responsibility for compliance with the terms and conditions of use has numerous pitfalls associated with it that employers need to understand. You should consult with competent legal counsel for assistance.
Although the announcement is good news regarding the No-Match rule, employers who will be subject to the new federal contractor rule need to review their internal policies and procedures now to ensure compliance by the rule's effective date, September 8, 2009. And all employers must still be vigilant in completing the Employment Eligibility Verification Form (I-9) to ensure compliance and to avoid possible civil and criminal penalties. Employers should:
- Conduct an annual audit of the I-9 process and the I-9 records to identify and correct errors;
- Conduct annual training of personnel assigned the duty to administer the I-9 process for an employer;
- If enrolled in E-Verify, make sure that the proper posters are prominently displayed or otherwise given to job applicants or new hires;
- Ensure that the current version of the I-9 is used and completed within the established timelines; and
- Consult with competent legal counsel before taking an adverse employment action against any employee related to the I-9.
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