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Angelo Paparelli on Dysfunctional Government

Federal Contractor E-Verify: Officious Intermeddling and the Immigration Nanny-State

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Homeland Security Secretary Janet Napolitano announced yesterday, in so many words, that she intends to shake, rattle and roil the still-swooning economy by endorsing a Bush Administration initiative that would make the online employment-eligibility-confirmation system known as E-Verify mandatory for federal contractors and subcontractors. 

Despite the Secretary's announcement, a counter-intuitive alliance of business and pro-worker immigration advocates is challenging mandatory E-Verify on legal and practical grounds.  Critics maintain that its mandatory use exceeds Presidential authority (since the 1996 legislation authorizing the system - then known as Basic Pilot - provided that participation would only be voluntary). Opponents also assert that the system is still too error-prone to risk the chance that large numbers of U.S. citizens and other authorized workers will be unjustly denied employment.

What's less well known is the pernicious effect of the Federal Acquisition Regulation (FAR) which goes far beyond the Federales' already unwarranted voluntary E-Verify system that relies on distorted principles of contract law for its enforcement teeth. 

The proposed FAR rule, as Batya Schwartz Ehrens and I have noted, requires that federal contractors and subs down the line (with modest exceptions) use E-Verify to test the employment eligibility of both new hires and all current employees who are assigned in direct support of a federal contract.  Until the FAR rule was proposed, existing employees have been legally off limits for E-Verify testing because of the substantial risk that employers will discriminate against workers who look or sound foreign. The FAR proposal upends that long-settled distinction between current employees and new hires.

So, how exactly does a federal contractor eager to get in on the stimulus dollars available under the 2009 American Recovery and Reinvestment Act satisfy the FAR E-Verify mandate?  The prime contractor is required to make sure that all of its own workers and all current and prospective employees of its subcontractors and sub-subcontractors assigned to the federal contract have the right to work, as confirmed by an E-Verify printout. 

What happens if, after the contract is awarded, E-Verify rejects so many workers that the contractor and the subs cannot perform and are in breach of the agreement?

Enter the age of government-stoked officious intermeddling. What's likely to happen will be that federal contractors will take a lesson from large employers who increasingly are using their bargaining clout in a down economy to insert immigration-compliance cram-down provisions in their contracts with vendors and service providers.  As Ted Chiappari and I discussed in a recent New York Law Journal article, "Minimizing Immigration Risks from Service Providers" (provided courtesy of IncisiveMedia, the copyright holder), the trend now is to require vendors and subs to allow the corporate customer to demand random immigration-compliance audits of the provider's workforce conducted by an immigration lawyer or consultant with I-9 expertise.

What happens next is all too foreseeable.  Unauthorized workers will be outed.  Contractors and subs will therefore fail to fulfill their federal contracts.  The intended effects of the stimulus will be diminished or delayed. The economy will remain in the doldrums.  Americans will suffer.

The better approach is to put FAR E-Verify ON ICE, and instead enact comprehensive immigration reform.  Unauthorized workers with otherwise clean records will then be screened, required to pay fines and back taxes, given work permission and placed on a path to legal status.  Federal contractors will perform without breach.  And America's economy will rebound, far sooner than if the Secretary's Nanny-State proposal becomes the law of the land.

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  1. Brittancus's Avatar
    American Workers can breath a sigh of relief, as for once our politicians are listening to us all? Well! Not quite? They have instituted E-Verify, the illegal worker extraction process from the workplace? BUT TELL ME WHY IT DOESN'T COVER EVERYBODY WHO COLLECTS A PAYROLL CHECK? Not just the new arrival workers, but everybody who works for the company? American citizens and legal residents, don't care about checking their identity, unless they have something to hide? But E-Verify will trap illegal trap people offering illegal Social Security Numbers and bogus ID papers. What's significant is that E-Verify is not in stasis, but being upgraded, modified all the time. All irregularities can be checked out at the Social Security office. Not a good place where illegal workers would enter. Almost every law on the books that includes 287(g) for local enforcement is always weakened or even snuffed out by political conspirators.

    If it really is being made MANDATORY for all federal employees and contractors? What reason are they arguing that it shouldn't be MANDATORY in every business throughout America? Every patriotic employer should use the E-Verification process? Unfortunately it's still voluntary for the public sector, which I am sure has been strongly influenced by US Chamber of Commerce, ACLU, Cato Institute and Council of Foreign Relations. Please don't take my word for the ominous agendas of these organizations? Allow yourself to--GOOGLE-- the rancid truth by surfing the Internet about these outfits? These are all anti-sovereignty, pro-illegal--CHEAP LABOR ENTITIES. They refuse any restrictions of any--REAL BORDER ENFORCEMENT?

    The next step is to push our SENATORS AND CONGRESSMAN to implement rigid INTERIOR ENFORCEMENT. An army of E-Verify federal inspectors to make unannounced visits to Human Resources, stores, factories, industry, businesses with a general warrant to audit books around the country. This would certainly
    be a parasite employers nightmare and hold their feet to the proverbial fire. Those who consider hiring illegal cheap labor will instantly condemn themselves to heavy fine, confiscation of business asset and even a prison term if caught with the undocumented labor.

    Always the ACLU, the subversive La Raza (THE RACE) is up front with filing lawsuits, against any town that considers ordinances to stop illegal immigrants from settling there. These are--ALL OPEN BORDER ZEALOTS--Brought and paid for by corporate money. If we didn't have sincere patriotic Senators like Sessions, E-Verify would have been tabled and hidden away from public view. Outside of the main Washington political elitists, very few listen to the voices of the American Worker who every day compete for jobs that foreign labor steal. My guess is the Democrats have allowed the authorization of a permanent E-Verify, knowing full well the Chuck Schumer Immigration Reform--BLANKET AMNESTY will make it worthless tool anyway?

    Giving 13 to 20 million plus families who rely heavily on government benefits will bankrupt America, according to the estimate of 2.5 Trillion dollars, Robert Rector at the Heritage Foundation. Then their is the next tsunami of poor people expecting to benefit from a further Amnesty, waiting patiently in other impoverished societies around the earth. CALL YOUR POLITICIAN DEMANDING A MANDATED E-VERIFY, NO AMNESTY! 202-224-3121. Honest facts at NUMBERSUSA, CAPSWEB, AMERICANPATROL & FAIR. ANOTHER AMNESTY WILL LEAD TO IRREVERSIBLE OVERPOPULATION! IF YOU SEE SUSPICIOUS ACTIVITY CALL ICE.
  2. ugg boots's Avatar

    Your writing is very elegant, very vivid and lively, I really like you, wish you continued to write better articles, I will often try to concern, oh!
  3. concrete boom pumps's Avatar
    I understand that these are laws to protect American jobs but how well are they enforcing this? They should focus more on the businesses rather than the workers.
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