Immigration and Employment Law Update
E-Verify, Form I-9 and Social Security No-Match Rules

 

In addition to the release of the new Form I-9, employers are also seeing new developments in immigration and employment law related to E-Verify and the Social Security No-Match litigation.  A federal court in Illinois struck down the state's law barring E-Verify enrollment by employers, while Nebraska recently enacted a new law requiring E-Verify enrollment for public contractors and businesses qualifying for state tax incentives.  Additionally, employers are still waiting to find out how the Social Security No-Match rule will affect their obligations upon receipt of a no-match letter while the more than 18-month litigation remains pending.

 

New Form I-9 Now Effective

 

            Employers are now required to use the new version of Form I-9 (revision date 02/02/09) to verify the employment authorization of all new hires.  One significant change affecting I-9 completion is that expired documents are no longer acceptable for I-9 purposes.  Additionally, three documents no longer issued by United States Citizenship and Immigration Services (USCIS) have been removed from List A, while three additional documents have been added to List A.  The Employee Attestation Section has also been revised.  View the new form online.

 

Illinois Law Restricting Participation in the Federal E-Verify Program Held Invalid

 

A federal court in Illinois held that an Illinois law barring E-Verify enrollment by employers was invalid because it conflicted with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Specifically, the Illinois law would have prohibited Illinois employers from enrolling in E-Verify until the federal agencies administering E-Verify were able to meet the accuracy and speed standards set forth in the Illinois law.  The federal court stated that under the U.S. Constitution's supremacy clause, only Congress is entitled to set the terms and the length of the testing of a federal program. 

 

The Illinois Act, which was passed in 2007, effectively prohibited employers in the state from enrolling in the Department of Homeland Security's (DHS) E-Verify program.  DHS brought a civil action for declaratory and injunctive relief against the state of Illinois to enjoin the state from enforcing the Illinois law that amended the Illinois' Right to Privacy in the Workplace Act.  The amendments were to be effective January 1, 2008, but Illinois agreed not to enforce the law while the litigation was pending.  On March 12, 2009, the court ruled that the Illinois Act conflicted with the federal IIRIRA, 8 U.S.C. § 1324(a).

 

Thus, the court’s decision maintained the status quo going forward. The E-Verify program remains a viable option for employers seeking to verify the employment eligibility of new hires.  On March 11, 2009, President Obama signed into law a bill containing an extension of the E-Verify program through Sept. 30, 2009.

 

Nebraska Enacts New Law Requiring E-Verify for Certain Employers

 

            The governor of Nebraska recently signed a new law requiring employers who receive state or local contracts and tax incentives to electronically verify the employment authorization of all newly hired employees using the E-Verify program.  This new law, which affects public entities, contractors and subcontractors for public projects, and businesses qualifying for state tax incentive programs, takes effect October 1, 2009. 

 

Social Security No-Match Litigation Still Pending

 

            The Department of Homeland Security's supplemental final rule regarding an employer's obligations upon receipt of a Social Security no-match letter was published last fall, but this new rule is not yet effective due to ongoing federal litigation that has been pending against similar rulemaking since late 2007.  When an employee's name and social security number (SSN) listed on the Form W-2 do not match the Social Security Administration's (SSA) records, SSA sends a "no-match" letter to the employer notifying it of this discrepancy.  Under the new DHS rule, if an employer fails to follow a set of "safe harbor" procedures, Immigration and Customs Enforcement (ICE) can use an employer's receipt of a no-match letter alone as evidence that the employer had "constructive knowledge" that an employee named in the no-match letter is not authorized for employment.

           

Written briefs had been due on April 10, 2009, but on April 9, the court granted DHS' motion for an extension of time.  Briefs are now due on June 10, 2009.

 

            Please contact a member of our immigration group with any questions related to I-9 compliance, E-verify, or Social Security No-Match issues.

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.