EmployeeScreenIQ Blog

Federal contractors be advised. It appears that the government is finally ready to follow through on its mandate to have all federal contractors use E-Verify to confirm employment eligibility on all workers. After several delays since the rule was supposed to take effect in January, 2009, DHS sent out this release this morning.

Department of Homeland Security

Release Release Date: July 8, 2009

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

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department’s intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.” E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.

The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.

On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent. In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report).

For more information on E-Verify, visit www.uscis.gov/everify.

View Official Release

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The Department of Homeland Security has again delayed enforcement of the requirement that mandates federal contractors use the E-Verify system to check the eligibility of their employees to work in the U.S. until at least September 8, 2009.

This mandate was originally scheduled to take effect of January 15, 2009 but was pushed back to February 20, 2009 due to a federal lawsuit filed by the U.S. Chamber of Commerce and other business groups. The parties then agreed to extend the deadline to May 21, 2009.

According to WashingtonTechnology, the rollback is to allow President Obama’s administration more time to complete its review of the rule.

“It would be the fourth time DHS’ U.S. Citizenship and Immigration Services agency has delayed the controversial rule. Under former President George W. Bush’s executive order, about 168,000 federal contractors were to begin using E-Verify in January. The order applies to contracts of more than $100,000 and subcontracts of more than $3,000.”

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Effective April 3, 2009 all U.S. employers must use the new I-9 Form which was revised earlier this year. Some of the changes include the following:

• The addition of a new citizenship attestation for Noncitizen nationals
• Modifications to the Lists of Acceptable documents;
• No longer accepting expired documents; and
• Other technical changes.

For those currently using or interested in employeescreenIQ’s Electronic I-9 Process, we have already updated this form into our interface with the Social Security Administration and the Department of Homeland Security.

View the New I-9 Form

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I had the honor of representing the National Association of Professional Background Screeners (NAPBS) along with 20 other colleagues from the screening industry on their annual Washington DC lobbying event.  We had a busy schedule of meetings over a two day time period highlighted by sessions with the EEOC, FTC and officers of our nation’s senators and congressmen.

We met with staffers from the following legislators: Senator Chuck Grassley (Republican-Iowa), Senator Kay Bailey Hutchison (Republican-Texas), Senator Mark Warren (Democrat- Virginia), Congressman Sam Johnson (Republican-Texas), Congressman Rodney Frelinghuysen (Republican- New Jersey), Senator Charles Schumer (Democrat- New York), Sentor Orrin Hatch (Republican- Utah), Senator Kay Hagan, Democrat, North Carolina, Senator Arlen Specter (Republican- Pennsylvania), Congressman Lamar Smith (Republican- Texas), Senator Byron Dorgan (Democrat- North Dakota), Senator Patrick Leahy (Democrat- Vermont), Congressman James Moran (Democrat- Virginia), Senator John Kerry (Democrat- Massachusetts), Senator Dianne Feinstein (Democrat- California), Senator Benjamin Cardin (Democrat- Maryland), Senator John Ensign (Republican- Nevada) and Senator Johnny Isakson (Republican- Georgia).  Our meetings primarily focused on three core issues which are being addressed in upcoming legislation:

Senate  Bill 163 (Child Protection Improvements Act of 2009)- Calls for the development of a mandatory background screening process for child care givers (day care, teachers, camps, etc.).  As an industry, we fully support this legislation.  However, we have concerns about the type of background check that the bill calls for, particularly its reliance on the FBI Criminal Database and state criminal record repositories.  It is a commonly held misconception that these two resources are the most accurate and reliable resources for conducting background checks.  In reality, there are far more effective methods for determining whether someone has been convicted of criminal activity.  The most thorough, accurate and reliable method being a county criminal record search in all counties where the subject has resided under all names used complemented by a National Criminal Record Search which includes a multi-jurisdictional Sex Offender Registry Search.

Senate Bill 141 and House Resolution 122 (Protecting the Privacy of Social Security Numbers Act of 2009)- This bill is aimed at curbing identity theft and calls for a limitation on how Social Security Numbers can be used in commercial situations.  Such measures include restricting access to public records which contain this information.  There is a provision to protect the continued permissible use of personal identifiers for legitimate purposes such as background screening and our efforts focused around reinforcing the need for this language and educating staffers on the importance for these identifiers.

Extension of E-Verify Program- This internet-based system is operated by the Department of Homeland Security and the Social Security Administration and allows employers to electronically verify the employment eligibility of their employees.  House Resolution 1105 reauthorized the program through 9/30/09 and we support further extension of this important government program.

Meeting with the EEOC

This was a truly enlightening experience.  We met with Carol R. Miaskoff who is an Assistant Legal Counsel for the agency.  Carol shared with us the role of the EEOC and its stance on background checks.  She was very clear that the EEOC did not have a problem with background checks as anexercise proper due diligence.  Where they do take exception is with bright line policies such as “do not hire anyone with a criminal record”.  They believe that such policies would have a disparate impact on minorities.  We spent a great deal of time discussing El v. Septa as it will continue to be an important force in future guidelines on background screening.  At the end of the day, the EEOC wants employers to demonstrate job relatedness, the nature of the offense, whether the candidate was a repeat offender and how long ago the crime was committed.

Meeting with the FTC

I was not there for this meeting but I understand that much of the meeting focused on the privacy issues previously mentioned on SB 141 and HR 122.

I was a truly an enlightening experience which provided much insight into our legislative process.  I am confident that the work we accomplished in just two days will have a positive impact on our industry and on employers that rely on the use of employment background checks.

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On Friday Congress passed the massive American Recovery and Reinvestment Act of 2009.  President Obama will sign this bill into law on Tuesday February 17th in Colorado. The $789 billion package is said to create and/or save more than 3 million jobs.  According to the Society for Human Resource Management (SHRM) the bill will have a considerable impact on its members.

A few areas that will affect Human Resources:

- E-Verify – All provisions for E-Verify were removed from the final version of the Bill.

- Unemployment and Health Care Coverage – A nine month extension of a program that offers an additional seven weeks of unemployment benefits.

- Health Care Technology – Almost $20 billion will be spent to improve the nations health care information technology.

- Trade Protection for Jobs – A provision was added that would extend Trade Adjustment Assistance benefits for at least 160,000 more workers who lose their jobs because of increased imports or because workers move those jobs offshore.

- Executive Compensation – A controversial provision limits compensation packages for businesses receiving TARP funds can offer their executive teams.

There are sure to be more areas of the 1,100 page bill that will impact Human Resources but these will have the most immediate.  Background screening companies were looking forward to the E-Verify provision as it allows us to enhance our automated I-9 Services.  The program is still available but voluntary for much of the country.  Stay tuned for more information in the coming weeks.

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This just in from NAPBS Lobbyist Montserrat Miller, of Counsel – Greenberg Traurig LLP.

According to Montserrat: Earlier this month, the litigants in the court challenge to the FAR Council’s regulations, mandating a modified version of the E-Verify/Basic Pilot program, reached an accord in which the government agreed to suspend applicability of the rule until February 20, 2009. Today, the litigants agreed to extend the applicability date to May 21, 2009, and asked  the court to stay the proceedings to allow President Barrack Obama’s Administration an opportunity to review the rule.

On January 20, 2009, Rahm Emanuel, President Barrack Obama’s Chief of Staff, issued a memorandum to the heads of all executive departments and agencies governing issuance and possible suspension of regulations. The memorandum stated that agencies should “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect.”

Under the new applicability date, which is expected to appear in Friday’s Federal Register, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the rule would impose. As previously reported, the rule mandates on most federal contractors and subcontractors a modified version of the E-Verify/Basic Pilot program—requiring reverification of the workforce and creating vicarious liability for subcontractors.

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