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Worksite Enforcement Update

July 29, 2009

E-Verify Update
Mandated use of E-Verify continues to rise. Arizona was the first state to mandate the use of E-Verify by public and private employers in a law enacted in 2007. In 2008, Mississippi and South Carolina also passed comprehensive immigration laws mandating the use of E-Verify by public and private employers. Potential penalties range from monetary fines to loss of an employer's business license. In addition Colorado, Georgia, Idaho, Minnesota, Missouri, Oklahoma, Rhode Island, Utah, and Missouri require the use of E-Verify by employers wishing to contract with state government. North Carolina requires the use of E-Verify by all state agencies. Moving forward, employers will need to continue to be extremely astute when it comes to monitoring state immigration laws being passed around the country, especially as ipertain to the mandated use of E-Verify. There is active immigration legislation being considered in virtually every state. In addition, there are hundreds of local ordinances being considered as well. "

Federal Executive Order 12989
This Order requires any company awarded a federal contract to begin using E-Verify within 30 days of the enacted date. Originally scheduled to be effective January 15, 2009, the effective date was initially pushed back until May 21, 2009. The effective date has since been delayed until September 8, 2009. The Order will also apply to subcontractors working on federal projects. One of the reasons for the numerous delays likely has to do with court challenges filed by a coalition of business groups led by the U.S. Chamber of Commerce. Nonetheless, employers who will be affected by the Order should be developing policies that address worksite enforcement and conducting internal audits to ensure compliance with relevant immigration regulations.

Administration Changes and then Pulls "No Match" Rule
The "No-Match" rule was embroiled in litigation and under a preliminary injunction when the Obama administration took office. The administration twice requested that the briefing schedule be extended in order to allow time to review the "No Match" rule in the context of the administration's immigration enforcement policy. Specifically, in its extension motions the Department of Homeland Security stated an additional extension of time was needed as Secretary Janet Napolitano continued to review the rule in the context of the Obama Administration's overall immigration enforcement policy. The motion indicated that DHS was evaluating numerous options, including whether to maintain the rule in its current form, or to seek amendment or repeal.

The Obama administration has now issued a press release indicating that the "No-Match" Rule will be rescinded and that it will rely on E-Verify as an enforcement mechanism:

"E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce," Secretary of Homeland Security Janet Napolitano said. "Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department's continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will."

Immigration and Customs Enforcement (ICE) Launches Initiative to Step-up I-9 Audits of Business Records
Earlier this month, Immigration and Customs Enforcement ("ICE"), the largest investigative arm of the Department of Homeland Security, issued over 600 Notices of Inspection to businesses across the country. Specifically, ICE wanted to review the hiring records (Forms I-9) for the various employers. The businesses that received the inspection notices were selected as a result of leads (from disgruntled employees in part) and information obtained through other investigative means. ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. What does this mean for most employers? It may not mean much in the short term. However, all employers should be aware that I-9 records are being scrutinized much more closely than they have in the past. In addition, all employers should be confident that their I-9 records would pass inspection if they are requested by ICE. It is a good idea for employers to conduct internal audits of their I-9 records before ICE conducts an audit of their own.

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