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Immigration Update: No-Match Rule, E-Verify and USCIS Investigations

August 21, 2009

DHS Proposes to Rescind Social Security No-Match Regulation

Department of Homeland Security proposed to rescind the social security no-match rule that has been stalled by litigation. The no-match rule required employers to either terminate employees who could not resolve discrepancies that resulted in receiving a no-match letter within 90 days of receiving the letter or risk DHS claims that the employer had constructive knowledge of employing unauthorized worker. In proposing to rescind the no-match rule, DHS stated that it decided to focus resources and enforcement efforts on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS will accept comments on the proposed rule through September 18, 2009.

E-Verify News

The implementation date of the regulation requiring certain federal contractors and subcontractors to participate in E-Verify is scheduled to become effective September 8, 2009. Under the rule, potentially subject employers are not immediately required to register for E-Verify. However, those employers may be compelled to register as certain federal contracts awarded and solicitations issued after September 8, 2009 will include a clause requiring use of E-Verify. This regulation has been delayed repeatedly often on the eve of implementation. Varnum will update as information becomes available.
Pending Michigan House Bills 4355 and 4969 mandate that all employment agencies and state contractors and subcontractors use E-Verify. The Michigan Chamber of Commerce opposes the proposed legislation and “are concerned that this legislation is one small step away from mandating that all Michigan job providers use the system.”

USCIS Fraud Detection and National Security Investigations

The Fraud Detection and National Security Investigation Division of US Citizenship and Immigration Services is conducting random and unannounced investigations to verify information related to foreign worker petitions, particularly H-1B and L visa applications. Investigators are interviewing company representatives and the foreign workers as well as reviewing immigration compliance documents. To be prepared for inspections, employers should review immigration records, including H-1B public access files and Form I-9s, to assure compliance and take appropriate remedial actions. Employers should also designate a company representative familiar with immigration petitions to respond to inquiries and connect officers to immigration attorneys. While employers may require investigators to obtain warrants, employers should weigh the potential advantages and disadvantages of resisting disclosure and determine the amount of evidence it will produce without a warrant.

Varnum is happy to assist in immigration record audits and planning for inspections. For more information about this and other immigration issues, please contact Kim Clarke at 616/336-6441 or Nina Thekdi at 248/567-7406.

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