This issue is geared toward the immigration lawyer who represents employers in immigration matters. If you have an article, an idea for an article, a suggestion, or even a constructive criticism, please e-mail (bbuchanan@kingballow.com) or call me (615-726-5484).
 

Bruce Buchanan *
King & Ballow Law Firm

The long-delayed E-Verify for federal contractors and subcontractors, hereinafter referred to as FAR (Federal Acquisition Regulation) E-Verify, was finally implemented on September 8, 2009.

The saga of FAR E-Verify began over a year ago with an Executive Order issued by President George W. Bush. The June 2008 Executive Order stated an electronic employment eligibility verification system shall be required to be used by contractors on federal contracts and the contractors must verify all employees hired during the contract term and all employees assigned by the contractor to perform work on the contract.

Pursuant to the Executive Order, the Department of Homeland Security published proposed rules and regulations. On November 14, 2008, the final rule was published setting the Executive Order's effective date as January 15, 2009. The final rule specified E-Verify would only be required on federal contracts of $100,000 or more and subcontracts of $3,000 or more.

On December 23, 2008, the Chamber of Commerce and several other employer organizations filed suit seeking to block far E-Verify's implementation on the basis the final rule and Executive Order violated federal immigration and procurement laws. Thereafter, the Department of Homeland Security agreed to several postponements of its implementation. In July 2009, the Secretary of DHS, Janet Napolitano, announced it planned to go forward with the implementation of FAR E-Verify on September 8, 2009. On August 25, 2009, a federal judge in Maryland found the federal government did not violate any federal laws or regulations in promulgating FAR E-Verify, which cleared the path for its implementation on September 8.

FAR E-Verify is significantly more comprehensive than voluntary E-Verify. Not only do federal contractors/subcontractors have to verify all newly-hired employees, regardless of whether they are assigned to the federal contract, but also all existing employees assigned to the federal contract. Additionally, federal contractors and subcontractors may elect to verify all existing employees regardless of whether they are working on a federal contract. The voluntary E-Verify is only for verification of newly-hired employees and strictly prohibits the use of E-Verify to verify existing employees.

FAR E-Verify covers all contacts entered into between federal agencies and contractors for goods or services of $100,000 or more and must include language requiring the contractors to use E-Verify. Furthermore, subcontracts of $3,000 or more related to federal contracts will require subcontractors to utilize FAR E-Verify. There are also several exemptions that are not related to the cost of the contract: (1) if the contract has performance terms of less than 120 days; (2) contracts for commercially available off-the shelf (COTS) items; (3) contracts for work performed outside of the United States; and (4) existing employees who normally perform support work, such as general company administration or indirect or overhead functions, and do not perform any substantial duties applicable to the federal contract.

The final regulations provide for various time periods for federal contractors and subcontractors to be in compliance with FAR E-Verify. The time periods are:

1. 30 calendar days from the date of the contract award to enroll in FAR E-Verify;

2. 90 calendar days from enrollment to begin using FAR E-Verify for new employees and existing employees assigned to the contract for first-time participating federal contractors and subcontractors;

3. 30 calendar days for contractors and subcontractors to initiate verification of existing employees, who are newly assigned to a federal contract and who have not previously been verified by E-Verify; and

4. Three days for new hires, where the contractor has already been enrolled in and utilizing E-Verify.

If you are going to be bidding on federal contracts, you should become familiar with all of the requirements of FAR E-Verify. This is true even if your company already uses voluntary E-Verify.

* Bruce E. Buchanan is the partner-in-charge of the Immigration Section of King & Ballow as well as a partner in the Labor and Employment Section. He represents employers in many areas of immigration, including employer compliance, individuals in immigration law as well as employers in labor and employment law. Mr. Buchanan served as senior trial specialist for the National Labor Relations Board for 20 years as well as for 12 years as an Adjunct Professor at William H. Bowen UALR School of Law in Little Rock, Arkansas. He can be reached at bbuchanan@kingballow.com.

Bruce Buchanan *
King & Ballow Law Firm

The U.S. Immigration and Customs Enforcement (ICE) recently launched an initiative to audit certain employers’ I-9 records through the issuance of Notices of Inspection.
 

In the Bush years, ICE was more likely to perform raids of employers suspected of hiring and employing illegal aliens or those persons without proper employment authorization documents.  Under the new administration, Secretary of Homeland Security Janet Napolitano has moved away from such raids; instead, she has authorized ICE audits of employers’ I-9 records.
 

So what is the difference between an ICE raid and an ICE audit?  As it sounds, a raid involves numerous ICE agents surrounding an employer’s facility, storming the facility, detaining all employees suspected of unauthorized work status and placing them in detention.  It utilizes an enormous amount of manpower and resources of the government.  
 

An ICE audit involves ICE agents hand-delivering a Notice of Inspection to an employer and demanding to inspect the employer’s ICE records, though the employer has three days to comply unless it is already using E-Verify.  In reality, the ICE agents are willing to provide more than three days notice, if requested.
 

During the period between the delivery of the Notice of Inspection and the deadline to provide the I-9s, the employer has the opportunity to review its I-9 files to make any necessary paperwork corrections or determine if all of the employees’ I-9s are in order.
 

Then, ICE agents return to the employer’s facility and remove the I-9s.  (Employers should always make copies of the I-9s before providing ICE with the original I-9s.)  At this point, the I-9s are taken to the ICE offices where their agents audit the records.  Specifically, ICE reviews each I-9 and supporting documents to determine whether an employee’s social security number or “A”(alien) number matches the government databases.
 

After the audit is complete, which may take anywhere from one to 18 months, ICE returns the I-9s and provides a Notice of Suspect Documents.  This notice lists the names of all employees whose I-9s could not be authenticated.
 

At this point, the employer must give notice, in writing or verbally, to each affected employee and provide them with an opportunity to correct any mistakes or provide proper work authorization documents.  If an affected employee does so, the employer must provide such documents to ICE for their review.  If an affected employee does not provide any such documentation, the employer should terminate the employee.  Failure to do so means the employer could face fines of between $275 and $2200 per violation for knowingly employing unauthorized workers.  Additionally, if there is a pattern or practice of hiring or continuing to hire illegal aliens, the employer may be subject to criminal charges.
 

Moreover, if an employer terminates the affected employees after providing notice and an opportunity to provide new documentation, an employer will not be subject to any fines or penalties for knowingly employing unauthorized workers unless ICE discovers other evidence that the employer was previously aware of the affected employees’ illegal status and took no action.  The fact that an employer hired an illegal alien, who provided a false “A” number, permanent resident card, work authorization document or Social Security number, is insufficient, in and of itself, to prove the employer knowingly hired any illegal aliens.
 

ICE may still issue a “Notice of Intent to Fine” for paperwork violations.  However, these fines are substantially lower than the fines for “knowingly employing” illegal aliens and do not carry any possible criminal violations.
 

In the last year, the most high profile ICE audit occurred at American Apparel in Los Angeles, where the employer terminated over 1,800 employees after ICE determined their work authorization documents were not proper.  During the ICE audit, American Apparel fully cooperated and has not received any fines or penalties for employing 1,800 illegal aliens.
 

* Bruce E. Buchanan is the partner-in-charge of the Immigration Section of King & Ballow as well as a partner in the Labor and Employment Section. He represents employers in many areas of immigration, including employer compliance, individuals in immigration law as well as employers in labor and employment law. Mr. Buchanan served as senior trial specialist for the National Labor Relations Board for 20 years as well as for 12 years as an Adjunct Professor at William H. Bowen UALR School of Law in Little Rock, Arkansas.  He can be reached at bbuchanan@kingballow.com.

 

Terrence Olsen
Chair
Olsen Law Firm
(Chattanooga)
(423) 648-9390
tolsen@tlolaw.com

Susan Schultz Davis
Davis Immigration
(Knoxville)
(865) 470-4307
susan@davisimmigration.com

Rehim Babaoglu
Vice-Chair
Thomason Hendrix Harvey Johnson & Mitchell PLLC
(Memphis)
(901) 525-8721
babaogluR@thomasonlaw.com

Bruce Buchanan
Newsletter Editor
King & Ballow
(Nashville)
(615) 726-5484
bbuchanan@kingballow.com

Barry Frager
Treasurer
The Frager Law Firm PC
(Memphis)
(901) 763-3188
bfrager@fragerlaw.com

Jeremy Jennings
Secretary
Jennings Immigration Law Office
(Knoxville)
(865) 470-0788
Jeremy@jenningsimmigration.com

Sean Lewis
UPL Committee Liaison
Law Offices of Sean Lewis PLLC
(Nashville)
(615) 646-6002
Sean@SeanLewisAttorney.com

Mona Mansour
West TN Delegate
Apperson Crump & Maxwell
(Memphis)
(901) 156-6300
mmansour@appersoncrump.com

Timothy Price
Pro Bono Committee Chair
(Memphis)
(901) 525-5524
tprice@justice.com

Mario Ramos
Middle TN Delegate
Mario Ramos PLLC
(Nashville)
(615) 329-4588
Mario@mrvisa.com

Allison Wannamaker
Pro Bono Committee
Thomason Hendrix Harvey Johnson & Mitchell PLLC
(Memphis)
wannamakera@thomasonlaw.com

Elaine Witty
Legislative Committee-Chair
Siskind Susser PC
(Memphis)
(901) 682-6455
ewitty@visalaw.com