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Mandatory E-Verify Bill Introduced

June 15, 2011

On June 14, 2011, Rep. Lamar Smith (R-TX) introduced the Legal Workforce Act (H.R. 2164), which would create a new employment verification system, the Employment Eligibility Verification System (EEVS) and mandate nationwide compliance within two years. EEVS will be patterned on the current E-Verify system. The bill requires employers to use the EEVS system to verify employment authorization, reduces the number of acceptable documents to establish employment authorization and identity and requires employers to obtain and record prospective employees’ social security numbers or identification numbers designated by the Department of Homeland Security.

The bill establishes a staged roll-out of EEVS that ranges from 6 months after enactment for employers with 10,000 or more employees to 2 years after enactment for employers with 1 to 19 employees. Employees performing agricultural labor or services would be required to be verified through the system 36 months after enactment. The bill contains an exemption for seasonal agricultural employment by not treating seasonal agricultural workers who return to work for an employer that previously employed them as new hires.

The bill requires the Social Security Administration (“SSA”) to notify employees who submit social security numbers to more than one employer if there is a pattern of unusual multiple use and lock accounts for employment purposes if it is determined that the number is being used fraudulently. The bill also requires SSA to notify the employer that the employee may not be eligible to work. Employers receiving notices would be required to verify the employee within 10 business days of receipt of the notice. SSA would also be required to issue notices to employers submitting mismatched or corrected wage and tax statements. Employers receiving this notice would be required to reverify the employee within 30 days of receipt of the notice. The bill provides employers a good faith defense when the information from EEVS was relied upon for any employment-related action.

The House Immigration Subcommittee is currently conducting hearings on the bill. We will continue to provide updates of new developments.

2012 H-1B Visas

Employers may still apply for 2012 H-1B visas for individuals not currently in H-1B status for a start date of October 1, 2011. As of June 13, 2011, USCIS has received 15,200 petitions towards the 65,000 general H-1B cap and 10,200 petitions the 20,000 U.S. Master’s degree cap. If your company has potential H-1B candidates working on post-education employment authorization that will expire prior to October 1, 2012, please contact us to prepare H-1B petitions for these individuals as soon as possible to secure an available visa.

Worksite Enforcement

Immigration and Customs Enforcement (ICE), the Department of Homeland Security’s (DHS) primary enforcement agency, continues to focus on worksite enforcement by increasing audits, investigation and prosecution of employers suspected of employing undocumented workers. Form I-9 audits continue to play a significant part in ICE’s worksite enforcement strategy. In February 2011, ICE issued 1,000 Form I-9 audit notices to employers across the US. Employers targeted for a Form I-9 audit are requested to turn over I-9 records within three business days. While it is possible to receive an extension of time, employers should maintain Form I-9s in an accessible and orderly system and conduct periodic self-audits due to the short amount of time available during an actual audit.

While the Legal Workforce Act may eventually require all employees to use an electronic employment verification system, there are already current federal, state and local laws that require certain employers to utilize E-Verify, an electronic verification system that compares an employee’s I-9 information with DHS and Social Security Administration records. Certain federal contracts and subcontracts now contain a clause requiring use of E-Verify. State laws include an Arizona law that requires all state employers to use E-Verify and laws in Georgia and Minnesota that require all public employers and state contractors to use E-Verify. The Arizona law was recently upheld by the U.S. Supreme Court. Penalties for non-compliance include loss of federal or state contracts, fines and loss of state business license. While Michigan does not currently require employers to use E-Verify, both Oakland and Macomb counties require certain county contractors to use E-Verify.

As the focus on employment of undocumented workers continues, employers will continue to be subject to a variety of requirements from all levels of government. Due to the multiple sources of requirements and the high stakes for non-compliance, employers should periodically review current immigration related processes to ensure proper compliance with immigration laws to protect against potential fines, criminal prosecution, loss of contracts and negative publicity.

Please contact your Varnum attorney or Immigration attorneys Kim Clarke or Nina Thekdi for more information.

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