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.
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
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
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
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
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
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.
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
Immigration, Labor &