A three-year extension for E-Verify was included in the $42.8 billion appropriations bill for the Department of Homeland Security (DHS) signed recently by president Obama.

E-Verify was set to expire but will now run until at least September 2012. Some lawmakers had been pushing for a five- or ten-year extension. The system’s staunchest supporters in Congress are also trying to pass a law making E-Verify mandatory for all employers.

We’ll keep you posted.

DHS formally withdrew its Social Security no-match regulation — first presented in 2007 — as of October 7.

The no-match regulation was the source of  “safe harbor”  rules for employers who received letters from the Social Security Administration stating that an employee’s Social Security Number didn’t match the agency’s records. The safe harbor rule required employers to follow procedures and three-month deadlines to resolve the discrepancy, or face legal penalties.

Shortly after being issued in 2007, the regulation was challenged in a federal district court in San Francisco and was held up by an injunction. The reg never was implemented, and DHS and the White House finally decided to drop it altogether.

A DHS statement announcing the rescission of the rule said the agency will “focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

Expect the Obama administration to make an especially strong push for mandatory E-Verify for all employers, not just for the federal contractors it covers now. Also, the Social Security Administration will maintain some of its processes for checking SSNs.

Help with immigration laws.

The Department of Homeland Security (DHS) recently launched its own YouTube channel to broadcast news and information to the public, including information on immigration regs that affect employers.

DHS says it will use the site to publish videos of speeches, events, public service announcements and other items.

The agency also recently reorganized its Web site to highlight its five main objectives: counterterrorism, border security, enforcement of immigration laws, disaster preparedness and DHS unification.

DHS Secretary Janet Napolitano said in her statement that the agency will endorse and support the federal contractor E-Verify regulation and continue efforts to improve the E-Verify system for all employers, not just federal contractors.

The move is intended to support the administration’s effort at emphasizing workplace enforcement and employment eligibility verification. Making it mandatory, and easier, for contractors is seen a precursor to requiring it for all employers.

Why de-emphasize “no match”?

• Organized labor has attacked the system as unfair and unreliable.
• The system was enjoined by a federal district court in Northern California shortly after the rule was published and before it took effect.  DHS issued an amended rule in March 2008 to address the court’s concerns. Still,  litigation had stalled the no-match rule.

In the Fall of 2008, the Bush Administration published a regulation that would have required all federal contractors to enroll in E-Verify and use that system to verify existing employees working on federal projects. Implementation of that rule was challenged by the US Chamber of Commerce and other employer/HR groups. The parties in that litigation had  agreed to postpone the effective date of the rule several times, and the rule is now scheduled to take effect on September 8.

The announcement by Napolitano suggests that the Administration has completed its review of the federal-contractor E-Verify rule and is in favor of implementing the rule. If the rule is enjoined, it will likely take action by Congress to amend the law so that E-Verify is no longer voluntary but can be mandated for federal contractors, and then all employers.

On April 30, DHS announced a major shift in the worksite enforcement program conducted by Immigration and Customs Enforcement (ICE): “Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers.”

Translation: The agency is shifting its approach from catching unauthorized workers to catching the people who hire unauthorized workers.

The cold facts:

• ICE officers will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office  to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.
• ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.

Enforcement of immigration law was already a high priority for the federal government in recent years. Last year, 51% of all federal prosecutions were immigration cases. There were 6,000 arrests relating to worksite enforcement, but only 135 were of employers.

All that’s about to change, and ICE has noted that prosecution can extend to owners, managers and supervisors.

What can an honest HR manager and employer do? Just make sure your documentation, such as I-9s, is complete and up to date. And double-check that your hiring practices are in compliance with federal laws.

Among her comments: “You have to deal with illegal immigration from the demand side … with what is drawing people across the border, and that is a job.”

Those comments, combined with Napolitano’s record — as governor, she signed into law Arizona’s employer-sanctions bill — could signal the direction DHS will take in stopping illegal immigration and the hiring of undocumented workers.

She also mentioned that, under her, DHS would take a look at reviving the controversial Real ID program, which called for national standards for state driver’s licenses, providing another document employers could use to verify eligibility for employment.

The president penned a continuing resolution — H.R. 2638 — that provides $100 million in funding and gives E-Verify life through March 6, 2009. The program had been set to expire on November 29.

What happens after March 6? President-elect Obama has indicated his support for E-Verify as part of a larger effort aimed at immigration reform. A separate bill to reauthorize E-Verify for five years passed the House on July 31 by a convincing 407-2 vote. However, it has been stalled for months in the Senate.

How it works
E-Verify is a voluntary, Internet-based system operated as a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA). The program allows employers to verify the employment eligibility of new hires. E-Verify electronically compares employee information taken from Form I-9 (the paper-based employment eligibility verification form used for all new hires) against more than 425 million records in SSA’s database and more than 60 million records in the DHS immigration database.

While some states have mandated that certain employers use this system, voluntary adoption has been slow due to concerns for the accuracy of the government checks and the additional administrative burden on employers.

The big push is on – especially at the state and local level – to nudge employers to register with E-Verify, the government Web program that allows you to electronically verify the information provided on the Form I-9. Whether you’re using the program already or are thinking about it, there are some facts and factors you should be aware of.

If I sign up our company, I know it gives me access to a system for checking employees’ citizenship, but what obligations does the government mandate for employers who are in the system?
You’ll be faced with 10 major responsibilities outlined in a Memorandum of Understanding you’ll sign:

1. Post a notice supplied by the DHS that you use E-Verify.
2. Provide the identification of the designated E-Verify employer representative.
3. When completing Form I-9, accept only List B documents that contain a photograph.
4. Photocopy and retain Form I-551 (Permanent Resident Card) or Form I-766 (Employment Authorization Document) with I-9 records if they are presented by an employee.
5. Notify DHS if you continue to employ following a nonconfirmation (with civil penalties of $500 – $1000 for failure to notify).
6. Initiate the E-Verify process within three business days after hire.
7. Follow required procedures, including notifying an employee in writing of any tentative nonconfirmations.
8. Record the case verification number on the employee’s I-9;
9. Allow DHS and SSA representatives to make periodic visits to review your E-Verify procedures and make such records available along with any materials related to the I-9 process.
10. Agree not to use E-Verify for pre-employment screening, for re-verification purposes, or for screening of any employees hired before the signup date.

How does does the verification process work?
You must initiate an electronic inquiry for all new hires no later than three days after the start of employment or whenever the I-9 employment verification process is done. There are three possible results from E-Verify:

1. Confirmation: This creates a rebuttable presumption of I-9 compliance. The case verification number needs to be attached to Form I-9. This ends the process with the exception of time limited authorizations, when re-verification is necessary.

2. Tentative Nonconfirmation: This is not grounds for termination and requires follow-up steps: double checking for errors, recording case verification number, and informing employee of the right to contest nonconfirmation with SSA or DHS. If an employee doesn’t contest the nonconfirm, then employment must be terminated. If an employee contests, you must provide the employee with a referral letter to the SSA or refer to DHS. The employee has eight federal working days to resolve the discrepancy unless SSA or DHS extends the time period. After 10 days, you must query the system again.

3. Final Nonconfirmation: The employer must record the case verification number on Form I-9. If the employer does not terminate employment, there is rebuttable presumption of unlawful hire.

What are the advantages of the system?
The advantages of using E-Verify are that it allows the employer to query the government databases as to validity of documentation. For those in vulnerable industries, it saves time and training by identifying unauthorized workers.

Disadvantages?
The disadvantages of E-Verify are that there are significant problems with underlying databases, creating errors that may lead to termination of lawful U.S. workers. E-Verify is also limited to new hires and does not create a safe harbor from worksite enforcement. In addition, eight days is often not enough for employees to resolve discrepancies and there is no formal appeal process. Continued hire after final nonconfirmation will result in a rebuttable presumption of a violation and can lead to further worksite enforcement scrutiny by the DHS.

How many employers are signed up already?
As of last month, about 70,000 employers are in the program, and there are about 1,000 new signups each week. Expect to see that figure go up since the federal government mandated that all of its contractors must be registered and more states are considering mandatory E-Verify participation.

Where do I go to register?
You can get started here.

Here’s the checklist, courtesy of the employment-law firm of Fisher & Phillips:

1. Don’t let employees begin working until the I-9 form is complete. This will reduce the risk of late completion or incomplete forms. It’s also far easier from your perspective if you simply tell the employee to come back the next day with proper documents because you won’t have to create a three-day “call-up” or “tickler” file.
2. Make sure your people performing verification are properly trained. Ensure they get appropriate updates.
3. Conduct periodic self-audits to monitor your own compliance.
4. Keep I-9 forms in a separate file — not in personnel folders.
5. Make photocopies of documents so you have something to work with if you have to add information to the form later.
6. Purge I-9 forms during periodic self-audits. Follow the retention rule: Three years from Date of Hire and one year from Date of Termination. When you meet both tests, throw out the form.
7. Don’t seek advice from ICE or DHS. If you have questions, call an expert.
8. Prepare your staff for informal/surprise inspections. Make sure they know who’s in charge of what.
9. Beware of document abuse discrimination. Don’t ask employees for specific documents or more documents than you need to complete Section 2 of the form properly.
10. Review the I-9 form before an employee leaves your payroll. This may be your last chance to get a signature or other necessary information.

Click here to see the Department of Homeland Security instructions for complying with I-9 regulations.