Copland and Brenner

Table of Contents

1. NY State Enhanced Driver License Accepted as WHTI Travel Document
2. E-Verify Required by Federal Contractors
3. In Brief: Recent Developments
4. Holiday Wishes

1. NY State Enhanced Driver License Accepted as WHTI Travel Document

   By notice published in the Federal Register on December 2, 2008, the New York State enhanced driver license (“EDL”) was deemed acceptable under the Western Hemisphere Travel Initiative (“WHTI”) for U.S. citizens entering the U.S.A. at land and sea ports of entry. The notice states that, “[u]nder the terms of the agreement between the Department of Homeland Security (“DHS”) and State of New York, New York will only issue EDLs to U.S. citizens. EDLs also may be issued as photo identification cards to non-drivers.” The designation by DHS was effective immediately.

   An EDL will serve as both a driver license and a travel identification document for travel. According to the notice, the “documents contain vicinity radio frequency identification chips and machine readable zones that will facilitate processing for the holder. The EDLs also include physical security features that guard against tampering.” Details regarding New York State’s EDL application procedures, requirements and fees are available on the Department of Motor Vehicles web site at http://www.nydmv.state.ny.us/edl.htm.

   The WHTI requires that U.S. citizens present a single document denoting both identity and citizenship when entering the U.S.A. by land or sea borders from within the Western Hemisphere, effective June 1, 2009. There are several types of documents that will satisfy this requirement, including an EDL issued by a state, or a U.S. passport card issued by the Department of State (“DOS”). Information regarding the U.S. Passport Card - where and how to apply, fee information, and required forms - is available on the DOS web site at http://travel.state.gov/passport/ppt_card/ppt_card_3926.html.

   A U.S. passport, of course, will also satisfy WHTI requirements for U.S. citizens entering at land and see ports. However, only a traditional U.S. passport may be presented for air travel between the U.S.A., Canada, Mexico, the Caribbean, and Bermuda. Information regarding how to apply for a U.S. passport is available on the State Department’s web site, at http://travel.state.gov/passport/passport_1738.html.

2. E-Verify Required by Federal Contractors

   Pursuant to a new rule published in the Federal Register on November 14, 2008, federal contractors and subcontractors will soon be required to use the E-Verify system to verify employee eligibility to work legally in the U.S.A. The rule was promulgated by the Department of Defense, General Services Administration, and the National Aeronautics and Space Administration, and reflects agreement between the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council regarding implementation of Executive Order 12989 as amended by President George W. Bush earlier this year. The 55-page rule amends the Federal Acquisition Regulation by designating E-Verify as the system to implement the Executive Order, and is effective January 15, 2009.

   Generally stated, E-Verify is an internet-based program for U.S. employers seeking to electronically verify the employment eligibility of newly hired workers, relating to the completion of Form I-9 as mandated since 1986. Concerns involving the validity of identity and employment eligibility claims made - and documents presented – to employers have led to E-Verify and similar earlier programs, allowing them to obtain government verification of the data provided by new hires.

   The main premise behind the new rule is that the presence of unauthorized workers on a contractor’s workforce renders it less stable and reliable than one that does not employ unauthorized aliens. To the extent that a contractor’s workforce includes aliens not eligible for employment, the resulting instability and unreliability are believed to negatively affect goals of economy and efficiency in fulfilling its contracts with the federal government.

   As described in a U.S. Citizenship and Immigration Services (“USCIS”) Update posted at www.uscis.gov on November 13, the new rule requires that “[f]ederal contracts awarded and solicitations issued after Jan. 15, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction.” Companies that are awarded contracts with the federal government must enroll in E-Verify within 30 days of the contract award date. To enroll, a company must agree to the E-Verify Memorandum of Understanding, which is a non-negotiable agreement between it and DHS and is required of all program participants.

   The June 8, 2008 Executive Order of President Bush provides that “[e]xecutive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the federal contract.” Significantly, as described in the Update, the new rule therefore requires federal contractors to agree to “use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. ”
   
   This is a significant departure from E-Verify parameters that would otherwise apply, and which specifically bar employers from using the system to verify the employment eligibility of current employees. In fact, under a “Know Your Rights – Quick List” page for employees, the USCIS web site states that “E-Verify must be used for new hires only. It cannot be used to verify the employment eligibility of current employees.” Elsewhere on the agency’s web site, employees are advised that “your employer may not use E-Verify selectively to verify some employees and not others,” and that “[e]mployers may not use E-Verify to re-verify the employment eligibility of an existing employee. Re-verification must be conducted through the Form I-9.” The bar to verifying employment eligibility of current workers is a frequently cited reason by employers who decide against voluntary participation in E-Verify.

   The new rule limits its applicability to certain entities. For example, the following entities need not verify all employees, but only those assigned to a covered Federal contract:

   - institutions of higher education
   - state and local governments
   - federally recognized Indian tribes
   - sureties performing under a takeover agreement entered into with a federal agency pursuant to a performance bond

   Other exemptions apply to individuals holding “active security clearance of confidential, secret, or top secret” or for whom background investigations have been completed and credentials issued pursuant to Homeland Security Presidential Initiative-12; contracts that are for commercially available off-the-shelf (COTS) items – or would be COTS but for minor modifications; and “exceptional circumstances” in which a head of the contracting activity “is authorized to waive the requirement to include the clause.”

   It is important to note that E-Verify complements, but is not a substitute, for the completion of Form I-9. The form must still be completed for all new hires, and workers’ documents reverified as necessary. When an employer participates in E-Verify, a worker’s identity and employment eligibility information is entered into the E-Verify system, which checks it against data contained in Social Security Administration (“SAA”), USCIS and other government databases. SSA first verifies that the name, Social Security number, and date of birth are correct and, if the employee has stated that he or she is a U.S. citizen, confirms U.S. citizen status. If the system confirms identity and U.S. citizenship and there are no other indicators that the information is incorrect, SSA confirms employment eligibility. USCIS verifies that any non-U.S. citizen employee is in an employment-authorized immigration status. If the worker’s information matches that in SSA and USCIS records, the employer must record on Form I-9 the verification identification number and the result obtained from the E-Verify query, or print a copy of the transaction record and retain it with the Form I-9.

   It is when SSA and/or USCIS cannot verify a worker’s information that the problems begin. When that occurs, the applicable agency will issue a “tentative nonconfirmation” notice regarding the worker. The employer must provide such notice to the employee, who must indicate whether or not he or she contests the finding of being unauthorized to work, and both the employer and the employee must sign the notice. A worker who contests the nonconfirmation, “has eight Federal Government workdays to visit an SSA office or call USCIS to try to resolve the discrepancy.” If the government is unable to timely resolve the discrepancy, or if the worker does not contest the finding, the employer will receive notice of final nonconfirmation and the worker’s employment “may” be terminated.

   If an employer retains the worker, it must notify DHS that this is the case – or becomes subject to a civil penalty of $500 - $1,000. If a nonconfirmed worker retained by the employer is subsequently determined to be unauthorized, the employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien. A first offense of employing unauthorized aliens subjects an employer to a fine of up to $3,200 per alien; for a third offense the fine can be as high as $16,000 per alien.

   E-Verify statistics posted on the USCIS web site indicate that “96.1% of employees are confirmed as work authorized before any type of mismatch notice or need for action by the employee or employer.” 3.9% of employees receive tentative nonconfirmations (2.96% from SSA and .95% from DHS); .37% are later confirmed to be authorized to work and 3.5% receive a final nonconfirmation –“because they are either not authorized to work in the United States, did not know they had the opportunity to challenge an initial mismatch…or choose not to follow the necessary procedures to prove work authorization after receiving an initial mismatch.”

3. In Brief: Recent Developments

   Agriprocessors, Inc. update: November brought more bad news to the Postville, Iowa meat processing company which was the subject of a highly publicized raid last May. According to a November 21 news release by U.S. Immigration and Customs Enforcement (“ICE”), the company’s former Chief Executive Officer, three company managers, and a human resources employee have been charged with immigration crimes in a 12-count indictment in federal court. The charges include conspiracy to harbor illegal aliens for profit, harboring illegal aliens for profit, conspiring to commit document fraud, aiding and abetting document fraud, aiding and abetting aggravated identity theft, and bank fraud. Two of the managers are described as fugitives. As the release notes, “[a]s with any criminal case, a charge is merely an accusation; a defendant is presumed innocent until and unless proven guilty.”

   Visa Waiver countries added: By final rule published in the Federal Register on November 17, and effective immediately, the following countries were added to the Visa Waiver Program: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Republic of Korea, and the Slovak Republic. Further details are available online at http://edocket.access.gpo.gov/2008/pdf/E8-27062.pdf.

4. Holiday Wishes

   To all our readers, we extend our wishes for a joyous holiday season and a healthy, happy and prosperous 2009. In doing so, and particularly in these difficult economic times, we ask that you remember those less fortunate now and throughout the New Year.