DHS Supports E-Verify for Federal Contractors But Not SSN "No-Match" Rule

July 14, 2009

On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano made two major announcements:

  • The Obama Administration intends to implement a regulation written during the prior Administration, requiring most federal contractors and subcontractors to use E-Verify.
  • The Administration intends to rescind another Bush Administration regulation, requiring employers to take specific steps to rectify any social security number discrepancy (commonly referred to as a “no-match”) identified in employer notice letters from the Social Security Administration. That rule was blocked by an order entered by a federal court in San Francisco on October 10, 2007 and has never taken effect.

E-Verify Implementation

The rule requires most federal contractors and subcontractors (including those who receive American Recovery and Reinvestment Act funds) to use E-Verify – an internet-based employment verification system administered by the U.S. Citizenship and Immigration Services, a part of DHS. The impact of the rule is more fully described in our December 8, 2008 article.

The E-Verify rule was scheduled to take effect January 15, 2009 but has been delayed numerous times, largely to allow the current Administration time to complete a review of it. See June 11, 2009 article. However, the Obama Administration’s decision to support the rule does not guarantee its implementation on September 8 or even at a later date.

The U.S. Chamber of Commerce and other employer groups have brought a lawsuit to block the E-Verify rule. That litigation is ongoing. In addition, the E-Verify program is currently scheduled to end on September 30, 2009. A DHS appropriations bill passed by the U.S. Senate on July 9, 2009 included an amendment making E-Verify permanent and mandating its use for new and existing federal contractors. That legislation is not yet law, as the appropriations bill passed by the House does not have a similar amendment and the two bills will have to be reconciled. However, there seems little doubt that E-Verify will, at a minimum, be extended and, most probably, made permanent.

Social Security No-Match

The Social Security “no-match” rule, discussed in our August 13, 2007 article, established procedures for employers to follow if they received either no-match letters from the Social Security Administration or notices from DHS that questioned the work eligibility information provided by employees. Secretary Napolitano announced that DHS will rescind this rule, the implementation of which has already been enjoined by a federal judge (see our October 23, 2007 and December 12, 2008 articles). The Senate voted to block this rescission in its appropriations bill, while the House bill did not address this issue. Once more, differences between the bills will have to be reconciled, and until then, the fate of the rule is still not determined. With the Administration’s abandonment of the no-match rule and the court order still in place blocking its implementation, it seems unlikely that this rule will ever become effective.

Final Thoughts

In making these announcements, Secretary Napolitano also responded to frequent criticisms of the reliability of the E-Verify system by noting new enhancements to guard against errors. Such updates include new processes to reduce typographical mistakes, new features to reduce initial mismatches, access to naturalization records to reduce citizenship-related mismatches, and access to passport data to reduce mismatches among foreign-born citizens.

As Governor of Arizona, Secretary Napolitano signed legislation mandating that all employers in her state use E-Verify. Her recent announcement appears to reflect her commitment to expand mandatory use of the system.

For further information on E-Verify or federal contractor, affirmative action or immigration compliance generally, please contact the authors or any member of the McGuireWoods Immigration, Labor & Employment or Employee Benefits teams.

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