AILA Asserts Proposed Changes to E-Verify are not Authorized by Statute
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.