Well, it's been a while since the last posting and many things have happened and continue to happen. Based on conversations with DHS and others in the industry, here are a few things to take into consideration regarding the FAR rule.

• Due to the number of comments and suggestions USCIS has received since issuing th E-Verify Supplemental Guide For Federal Contractors on September 8, 2009, USCIS will be issuing an updated version in the near future.
• USCIS also issued an updated E-Verify User Manual For Federal Contractors on September 8, 2009. It is anticipated that an updated version of this document will also be issued to correct errors such as missing sections and poor wording.
• USCIS announced this week on the E-Verify website that the Photo Matching Tool, designed to help prevent document fraud, will be made available to E-Verify Designated Agents (soon to be referred to as E-Verify Service Providers) by the end of the year. The tool is already available to employers using the E-Verify website. Designated Agents will likely have between 6 and 9 months to update their electronic I-9 services to use the new E-Verify web service interface including the Photo Matching Tool.
• There are two groups of existing employees that can be considered exempt from E-Verify for purposes of complying with the FAR rule. However, if you must treat all employees in a group the same to avoid potential discrimination. If you submit one employee with an HSPD-12 background check, then you must submit all employees in the group. These groups include:
  • Employees with an active confidential, secret, or top secret security clearance
  • Employees with credentials issued as a result of an HSPD-12 (Homeland Security Presidential Directive 12) background check.
• Any existing employee who has already been submitted to E-Verify may not be submitted again unless they have been rehired since last being submitted to E-Verify. If you have used E-Verify for any existing employees you should generate the User Audit Report from the E-Verify website. This gives you an Excel file of the employees already verified by E-Verify so you can avoid submitting them more than once.
• Be careful when deciding to verify all existing employees or only those assigned to a FAR contract. Once you make this decision you can't change it.
• Employers have the ability to consider the legal entity that signed the contract as the contractor and bound by the FAR rule. NOTE: Consult your legal counsel to determine if certain subidiaries and affiliates are part of the legal contracting entity.
• Finally, based on feedback from many employers, industry organizations, and off-the-record discussions with DHS the best practice for verifying existing employees is to submit ALL existing employees to E-Verify by creating a new I-9 for each existing employee. For many employers verifying all existing employees is the lesser of two evils. NOTE: You must retain the employee's original I-9. Here are some reasons why verifying all existing employees is being considered the best practice.
  • This is a one-time event. If you decide to only verify employees working on a FAR contract, then you have an ongoing, never ending obligation to continue to verify existing employees transferred to an existing FAR contract or assigned to a new FAR contract.
  • Once you are finished you will only need to verify all new hires.
  • You have one process used uniformly across the entire organization.
  • You will have to complete new I-9s for at least some of your employees. This is because an I-9 must comply with E-Verify. Since a new I-9 was issued April 3, 2009 that now includes 4 citizenship options in Section 1 and no longer allows expired documents to be used to complete Section 2, all of your existing I-9s will not comply with E-Verify. By completing new I-9s for all existing employees you avoid having to manually audit your I-9s to determine which ones comply with E-Verify and which ones don't. For those that don't comply, you will have to complete a new I-9 anyway. Since most of your existing employees were probably hired prior to April 3, 2009, you will have to complete new I-9s for most of your employee anyway.

In closing, compliance with the FAR rule is causing employers to really consider moving to an electronic I-9 with E-Verify. This will reduce the hassle, eliminate errors with real-time error checking, promote your GREEN initiatives, automatically receive notifications for employees with expiring work authorizations (reverifications), reduce liability by automatically purging old I-9s for terminated employees once the I-9s have satisfied Federal retention requirements, and provide enhanced compliance reporting.

NOTE: For TALX clients already using The Work Number employment verification service from TALX, we already have the data we need for I-9 compliance reporting.

Well, my speculation was way off! This one surprised me and, I'm sure, many others.

The Administration has decided to move forward with the FAR rule requiring federal contractors to use E-Verify. In a press release dated July 8, 2009 the Department of Homeland Security Secretary Janet Napolitano announced that "After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009." Click here for the full press release. I interpret the term full implementation to indicate that the rule will be implemented as it currently stands, which includes a verification requirement for existing employees. No mention was made in the press release of the lawsuit filed against the rule by the U.S. Chamber of Commerce and others.

The direction provided in the instructions for the Form I-9, the Handbook for Employers (M-274), and the E-Verify User Manual for the employment date in Section 2 could provide more specific. Consequently, there are different interpretations used by entities such as employers, E-Verify Designated Agents, electronic I-9 service providers, ICE, USCIS, and OFCCP. Wouldn't it be nice if everyone used the same definition!

I propose that the rule for the employment date in Section 2 should be the following:

The employment date in Section 2 may be the current date (the date Section 2 is signed) or a prior date, but it cannot be a future date.

Here is the rational for this definition.

1. The language in the cerfication statement in Section 2 says 'that the employee began employment on (month/day/year)                  '  Words have meaning and this language says began rather than will begin. Therefore, the language indicates that the date should be the current date or a prior date and not a future date.
2. Since the signatory is attesting that the information in Section 2 is accurate, using a future date requires the signatory to attest to an event that has not yet occurred. Since there is no way to guarantee the employee will actually start work on a future date, it does not make sense to attest to a future event by entering a future date in Section 2.
3. E-Verify will not accept an employment date that is in the future. Since E-Verify, the government's free system that employers can use to verify a new hire is authorized to work in the U.S., does not accept a future date, it makes sense to not enter a future date in Section 2 of the Form I-9.
4. There are basically two reasons for entering a prior date in Section 2 of the Form I-9.
   1. The employer has three work days do complete Section 2 of the Form I-9 for a new hire. Therefore, the employment date could be prior to the Section 2 signature date.
   2. If the employer identifies that an employee is missing a Form I-9, the employer should complete a Form I-9 as soon as possible. In this situation, the employment date in Section 2 will be more than three days prior to the Section 2 signature date.

One other point, there is really no relationship between the Section 1 and the Section 2 signature dates. However, the Section 1 signature date must be the same or prior to the Section 2 signature date. The employee should complete Section 1 before or at the same time the employer completes Section 2.

By the way, the employment date in Section 2 MUST be completed when the employer signs Section 2. The Form I-9 instructions state that employers must record in Section 2 the date employment begins. Some employers, especially in the staffing industry, leave the employment date blank and when the employee is placed in a position the employment date is entered. This is not compliant and is a very dangerous practice that would likely be considered to be a substantial violation in the event of an ICE audit. Substantial violations have a high likelyhood of resulting in penalties against the employer. This practice also results in the employment date in Section 2 being a future date since the date would be after the Section 2 signature date.

If you use the rule proposed above you should have compliant employment dates in Section 2 of your Forms I-9.

Good luck!

Dave Fowler

July 9, 2009 - Well, my speculation was way off! This one surprised me and, I'm sure, many others.

The Administration has decided to move forward with the FAR rule requiring federal contractors to use E-Verify. In a press release dated July 8, 2009 the Department of Homeland Security Secretary Janet Napolitano announced that "After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009." Click here for the full press release. I interpret the term full implementation to indicate that the rule will be implemented as it currently stands, which includes the a verification requirement for existing employees. No mention was made in the press release of the lawsuit filed against the rule by the U.S. Chamber of Commerce and others.

Based on what is happening in the administration and with other interested parties such as the U.S. Chamber of Commerce, here is a hypothetical timeline that has a chance of happening.

June 1, 2009 - U.S. Chamber of Commerce releases a statement that the FAR rule for federal contractors is going to be delayed again (this is the 5th time) until September 8, 2009.

June 1, 2009 - Center for Immigration Studies releases a statement that President Obama will begin meeting with Congress on June 8, 2009 regarding immigration reform. Update from Aaron Blake of The Hill (see article below): The White House had planned the meeting for June 8 originally and rescheduled it for June 17. It is being rescheduled for next week, according to a White House official. "The meeting will happen soon and a new date is being set," the official said. The meeting is set to include a small number of senators and members of Congress and is acting as a kickoff for the administration’s efforts on immigration.

June 2009 - DHS Secretary Janet Napolitano announces that there will be changes to the FAR rule that will resolve the lawsuit filed by the U.S. Chamber of Commerce and others.

July 8, 2009 - On or before this date a new FAR rule removing the requirement to submit existing employees to E-Verify and possibly other technical changes will be published in the Federal Register with a 60 day comment period.

September 8, 2009 - the FAR rule will take effect and federal contractors with covered federal contracts will be required to submit all new hires to E-Verify.

This is just speculation, but, who knows, it could happen. Stay tuned.

Updated 6/26/09: Rahm Emanuel says votes not there for immigration reform (BACKGROUND ON MEETING WITH MEMBERS OF CONGRESS TO DISCUSS IMMIGRATION REFORM) - http://blogs.suntimes.com/sweet/2009/06/rahm_emanuel_says_votes_not_th.html. (6/25/09)

Updated 6/25/09: United States: Immigration Alert: USCIS Announces Further Delays In E-Verify Implementation, Article by Mintz Levin Immigration Practice Group - http://www.mondaq.com/article.asp?articleid=81810. (6/24/09) 

Updated 6/16/09: NumbersUSA says - Obama Administration and DHS to Gut E-Verify Executive Order. (6/12/09)

Updated 6/16/09: Frank Davies of the Mercury News Washington Bureau writes - Obama, Congress flirt with tackling immigration reform. (6/14/09)

Updated 6/16/09: Aaron Blake of The Hill writes - White House puts off immigration meeting again.

Dave Fowler

Welcome to the TALX blog focused on the Form I-9 and E-Verify. As you may know there are many changes occurring with the I-9 and E-Verify in 2009. On April 3, 2009 the new I-9 form went into effect. With this new form there are some big changes such as:

• The U.S. citizen and national citizenship statuses have been separated so there are now four citizenship statuses instead of three.
• Expired documents may not longer be used to complete the I-9.
• E-Verify is updated to not accept expired documents.

It is important to note that to update or reverify an I-9 completed on a previous Form I-9, you must complete a new I-9 using the new form.

The second major change scheduled to go into effect May 21, 2009 is the FAR rule that requires Federal contractors with a covered Federal contract to use E-Verify for all new hires and existing employees assigned to the contract. There is an option for the Federal contractor to submit all existing employees hired after November 6, 1986 to E-Verify. This option is very useful for employers who a) cannot easily track which employees work on covered Federal contracts and/or b) want to avoid employee tracking altogether and simply verify all existing employees and be done.

Here are some links for more information and to be kept up to date on changes to the Form I-9 and E-Verify. It is very handy to subscribe to the email notifications from these sites.

• http://www.dhs.gov/e-verify - This will take you to the U.S. Citizenship and Immigration Services site. Here you can sign up for email updates, access documentation about E-Verify, and read the FAQs.
• http://www.cis.org – This will take you to the Center for Immigration Studies site which covers immigration issues. You can sign up for email updates and read blogs.
• http://www.google.com – Sign up for email updates at Google News. You can use E-Verify as your key word to be kept up on E-Verify news and blogs.

Dave Fowler