1. Worksite Enforcement
Elise A. Fialkowski, Esq.

2. Overview Enforcement in a New Administration I-9 and H-1B enforcement
State & Local Laws
E-Verify Rule for Federal Contractors
Practical E-Verify Compliance Considerations
Electronic I-9 programs

3. Enforcement in a New Administration
I-9 Compliance - unauthorized workers
Raid v. audit/investigation
Focus on Employers
Pledge to continue active criminal prosecution of employers
Pledge to issue detailed investigation protocols
Support E-Verify/system improvements

4. Enforcement in a New Administration
(cont’d)
H-1B/LCA Compliance
Pledge to aggressively enforce “wage theft”
Substantial increase in investigative staff
Expect even greater number audits/investigations
“Fraud” profile/criminal enforcement

5. Impact of State and Local Laws
Expect continued State legislation targeting unauthorized employment
As of June 30, immigration related bills introduced in the states
Companies that knowingly hire unauthorized workers may face:
Loss of business licenses
Loss of government grants and contracts

6. Impact of State and Local Laws
(cont’d)
State E-Verify Laws
E-Verify Required by all employers: AZ, MS, SC*
Contractors: CO, GA, MN, MS, MO, OK, RI, SC, UT
Public employers: AZ, GA, MN, MS, MO, NC, OK, RI, SC, UT
Note: ongoing litigation/injunctions

7. E-Verify Rule for Federal Contractors - Overview
Amends FAR to implement Executive Order requiring federal contractors to use E-Verify
Final rule effective date postponed to May 21, 2009
Contracts must contain the “E-Verify clause”/be modified to contain
Requires E-Verify query of
All new employees
All existing employees assigned to the contract
Or 180 day option for all existing employees
University option: new hires and existing employees assigned to contract

8. E-Verify Rule for Federal Contractors - Timeline
Applies only to
Qualifying contracts issued after 5/21/09
IDIQ contracts w/6 month & substantial performance after 5/21/09
Enroll in E-Verify within 30 days contract award
90 day phase-in for E-Verify queries

9. Federal Contracts & Subcontracts Subject to the Rule
Only Prime Acquisition Contracts subject to FAR with
Period of performance longer than 120 days AND
Value above $100,000 prime acquisition threshold

10. Federal Contracts & Subcontracts Subject to the Rule
Excluded:
Contracts for COTS items (or minor modif. To COTS) and related services
Grants
Cooperative agreements
Contracts where all work performed outside US
Contracts not meeting 120 day or $100,000 req.
Unmodified contracts existing prior to 1/15/09
(cont’d)

11. Federal Contracts & Subcontracts Subject to the Rule
(cont’d)
Subcontracts
Must flow from the prime contract with E-Verify clause
Only for
Subcontracts for Services or Construction
With a value over $3,000

12. Brief Overview
Web-based system checks I-9 information against social security and DHS databases
Requires Employer to agree to MOU w/significant obligations
Not an I-9 substitute
Queries must be conducted within 3 days after hire
Employer reluctance -100,000 users as of Jan. 09
New developments/improvements

13. Practical E-Verify Compliance Considerations
Audit of older I-9s
I-9 issues with existing employees under Federal Contractor Rule
Who conducts queries
I-9 and E-Verify policies
Training
Electronic I-9 program

14. Electronic I-9 Program Many providers, most link to E-Verify system
Some providers act as E-Verify Designated Agents
Others link to system but allow company to control E-Verify query such as Immigration Tracker I-9
Web-based v. software
USCIS reports they are developing their own Electronic I-9

15. Electronic I-9 Program
(cont’d)
Benefits vary depending upon provider and functionality of program
Time-saving: data does not have to be reentered for E-Verify
Alerts as to missing fields, inconsistent information and dates
Tickler system for reverification
Links to HR system
Tools to easily purge I-9s consistent with retention requirements
Paperless “green option”—electronic signature, electronic retention and scanning

16. Electronic I-9 Program
(cont’d)
Help features/pop-ups to assist with process/explain documents
Reminder s to designated HR staff
Customization-configured to company’s business processes
Immediate updates with changes in Forms/policy
Support for program/E-Verify