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By Bruce Buchanan
On June 8, 2015, the Department of Homeland Security (DHS) proposed changes to E-Verify, with the most significant being utilization of E-Verify when an employer re-verifies an employee through the I-9 form. Recently, the American Immigration Lawyers Association (AILA) submitted its comments in opposition to the revisions. AILA’s basic premise is there is no statutory authority to support these revisions.
Section 403(3)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which authorized E-Verify states: “The person or other entity shall make an inquiry…using the confirmation system to seek confirmation of the identity and employment eligibility of an individual, by not later than the end of three working days after the date of hiring.” Therefore, the statute permits E-Verify employers to verify the employment authorization of potential employees only in the context of the “hiring.”
If the proposed revisions were implemented, employers would not receive legal protections - such as a rebuttable presumption that the employer did not knowingly hiring an undocumented worker if authorized by E-Verify - provided to employers for acting in good faith reliance on E-Verify results. This is because the statute only provides this protection in the hiring context related to the employee’s identity and employment authority.
AILA asserted the proposed changes to E-Verify would significantly change the requirements and burdens placed on E-Verify employers; thus, it constitutes a legislative rule under Section 553 of the Administrative Procedure Act (APA), which requires notice and comment rulemaking before they can be lawfully implemented.
I will note that a Federal Judge recently found DHS failed to utilize this same type of notice and comment rulemaking in implementing the 17-month OPT STEM extension and voided the extension. Thus, DHS may be making a similar mistake in this case without notice and comment rulemaking.
AILA also asserted rulemaking was required to the extent that these changes would be applied to federal contractors. The Federal Acquisition Regulation (FAR) does not allow a federal contractor to “perform additional employment verificationusing E-Verify for any employee whose employment eligibility was previously verified by the contractor through” E-Verify. DHS cannot unilaterally impose E-Verify changes on federal contractors by revising the Memorandum of Understanding (MOU) because the E-Verify obligations of federal contractors are already set forth in the FAR. Thus, an amendment, with the full notice and comment process, would be required to impose these new burdens.
Furthermore, AILA argued DHS’s proposal did not provide any substantive policy justification in its supporting statement for the change. This is despite the fact that the proposal would impose substantial new burdens and obligations on E-Verify employers. The failure to provide a policy justification deprives the public of the opportunity to meaningfully assess the costs and benefits of the proposed changes.
Finally, AILA argued, under this proposed revision, E-Verify employers who follow the proposed MOU’s three-day reverification procedure rather than the strict expiration date rule found in the I-9 reverification regulation could unintentionally find themselves in violation of INA §274A(a)(2), and for federal contractors, this could lead to debarment. The proposal does not contain a safe harbor provision from a knowingly continuing to employ violation.
I will be following these E-Verify proposed revisions by DHS and update you on any new developments.
By Bruce Buchanan, Siskind Susser PC
A U.S. District Court Judge for the District of Colombia invalidated USCIS’s 17-month Optional Practical Training (OPT) extension rule for STEM recipients in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security. The Judge found the Department of Homeland Security (DHS) did not have good cause to publish the OPT extension regulation in 2008 as an emergency rule; thus, it was not exempted the notice and comment requirement. Luckily for employers and STEM (Science, Technology, Engineering or Math) recipients under OPT, the Judge stayed her decision, meaning it will not go into effect until February 12, 2016.
In 2008, DHS implemented this rule to allow F-1 students with degrees in certain STEM fields to extend their OPT work authorization period by 17 months after an initial 12-month period as long as the employers were enrolled in E-Verify. The rule also provided for significant H-1B cap gap protections.
The Judge stayed her decision because the immediate impact “would force ‘thousands of foreign students with work authorizations . . . to scramble to depart the United States” and there is “no way of immediately restoring the pre-2008 status quo without causing substantial hardship for foreign students and a major labor distribution for the technology sector.”
Unless USCIS issues a new OPT STEM extension rule via notice-and-comment rulemaking by February 12, 2016, the Judge’s decision will go into effect, eliminating the benefits of the 2008 rule. However, DHS has the opportunity to publish the substance of the 2008 rule through the rulemaking process, which allows for a 90-day comment period before the rule can be re-authorized. This must be done as soon as possible in order to beat the February 12, 2016 deadline.