Ali Aba Far E Verify Presentation

www.khlaw.comWashington, D.C. ● Brussels ● San Francisco ● Shanghai

Mary PivecPartner

Keller and Heckman LLP1001 G Street, N.W.

Washington, DC 20001202-434-4298

[email protected]

Confronting The New E-Verify Mandate for Federal Contractors

September 30, 2009

2│ www.khlaw.com │ KELLER AND HECKMAN LLP Copyright © 20092

All Federal Acquisition Contracts for• Commercial Services (excluding services

provided by a COTs vendor in connection with the sale),

• Non-commercial Services, and• Construction

Awarded on or after September 8, 2009 Valued over $100,000 Performance over 120 Days

Contract Coverage


Employees Subject to E-Verify

All existing employees directly assigned to a covered contract

All new hires – whether or not assigned to a covered contract


Hired after 11/6/86 Directly performing contract work Excludes support staff who perform indirect

or overhead functions and who don’t perform substantial contract work

Limited exceptions apply: • Employee holds top secret security clearance• Agency head waiver

Employees Assigned to Contract


The Prime Contractor must include the E-Verify Clause in all

subcontracts valued above $3000, regardless of the term or intermittent nature of subcontractor performance, provided the subcontract involves commercial, non-commercial or construction services

is liable for Subcontractor compliance at all tiers

Flow Down Liability


If Affiliate provides services valued in excess of $3000 for performance of a covered contract, Affiliate likely is a subcontractor subject to E-Verify

Possibilities:• Personnel services• Equipment leasing• Materials purchasing• Business management

Affiliates of the Contracting Entity


True Independent Contractors • Still must enroll in E-Verify if paid $3000

and work 30 days or more• E-Verify run through obligation depends on

whether operates as self-employed Misclassified Independent Contractors

• Somebody’s employee• Prime has liability if no I-9 and no E-Verify

confirmation as work authorized

Touchy Independent Contractor Issues


Contract Award

Day 1Contractor Must Enroll in E-Verify and Sign MOU, or Update Registration to Federal Contractor Status

No later than Day 31


Contractor Must Have Entered E-Verify Queries for Existing Employees Assigned to the Contract or 30 Days After Assignment, Whichever Is Later; Begin E-Verifying All New Hires Companywide within 3 Work Days

Compliance Timeline


Contract Award

Day 1Contractor Must Enroll in E-Verify and Sign MOU and designate Total Workforce option



Contractor Must Have Entered E-Verify Queries for Total US Workforce and Begun E-Verifying All New US Hires Companywide within 3 Work Days

Total Workforce Option


Identify E-Verify Awards

Notify Subs – Modify Subcontracts

Review MOU Enroll in E-Verify Designate E-Verify

Compliance Czar, E-Verify Sites and Authorized Users

Purchase necessary computer equipment and web access

Modify handbooks

Notify Unions – engage in impact and effects bargaining if requested

Train Managers, Supervisors and Users

Identify all existing employees subject to E-Verify

Audit I-9s to E-Verify standards or prepare new I-9s for the entire workforce

Post DHS & OSC Notices

Compliance Countdown


Before initiating E-Verify queries

Must confirm names, date of birth, immigration status, ID numbers and work authorization status by speaking with each employee

Employee must provide a social security number in Section 1 Existing I-9s must be segregated into those which may be updated

with the employee’s assistance and those requiring a new I-9 If the employee previously presented a US passport or I-551 that was

valid when presented but it has since expired, and work authorization is still current, an employer is prohibited from requiring the employee from presenting a currently valid US passport or I-551 for updating purposes

I-9s must be corrected, unless DHS rules require a new I-9 Selective application of the new I-9 requirement could result in liability

for national origin or immigration status discrimination Retain a copy of I-551 or I-766 if presented

I-9 Audit Option


Presented an expired document on old I-9 Designated alien status in Section 1 and work

authorization has expired Presented Column B document lacking photo or

you can’t tell because you didn’t retain the document

Was a non-citizen but couldn’t complete Sec. 1 attestation

Changed immigration status Changed name Failed to complete prior I-9 properly

When An Employee Must Complete a New I-9


Mandatory Postings


Initial Verification Query


Case Details Page Reporting SSA TNC


The Employer’s Representative must take the following actions:

Print TNC Notice from the E-Verify system Meet with the Employee to determine if he will contest – no coercion

permitted Get Employee to check off his decision and sign and date the Notice Sign and date the Notice, certifying the authenticity of the Employee’s

signature and affirming, to the best of Representative’s knowledge, that the Employee’s choice was knowing, voluntary and uncoerced

Record the Employee’s choice in the E- Verify system If the Employee contests SSA TNC, must print out SSA Referral Letter

and instruct Employee to present it at a Social Security office within 8 federal work days or be subject to FNC; SSA automatically notified

If the Employee contests DHS TNC, print the DHS Referral Letter and instruct Employee to contact DHS through its toll free hot line within 8 federal work days or be subject to FNC; DHS automatically notified

If Employee declines contest, system will report FNC

Required Procedure if Employee Query Results in TNC


Activated automatically when Employer enters I-551 or I-766 data If available in DHS database, photo is displayed in Case Report Employer compares photo on screen to the photo on the Employer’s copy of the I-551 or I-766 and clicks one of the following:

•“Yes” – Reasonable Certainty that photographs are identical•“No” -- Photographs are not identical•“Cannot Determine”

If not “Yes” – Employer must print out Photo TNC Notice, present it to Employee, ask if he wishes to contest, execute Notice, report response, print DHS Photo Referral Letter, and direct Employee to call DHS hot-line within 8 Federal work days The Employer mails a copy of the Employee’s document to DHS as directed at DHS expense

Photoscreen Procedure


Using E-Verify to prescreen job applicants Selectively using E-Verify based on citizenship, immigration or

national origin status E-Verifying existing employees not subject to the FAR E-Verify

clause or “Total Workforce” option Requiring alien workers to produce I-551 or I-766 cards –

unless they produce a restricted Social Security Card Requiring any employee to obtain a printout from the Social

Security Database or other written verification of the Social Security number from the SSA

Absent knowledge that the employee is not work authorized, taking adverse action before FNC is issued

Accessing the E-Verify system to investigate an employee’s immigration status after receipt of “work authorized” confirmation during the same period of employment

Forms of Prohibited Discrimination


No. If you follow all the rules, and E-Verify reports that an employee is “work authorized,” you get a rebuttable presumption you didn’t violate the knowing hire provisions with respect to that employee

If you continue to employ any worker after receiving a FNC notice, there will be a rebuttable presumption that you knowingly violated the sanctions law, if the employee turns out to be unauthorized

If you fail to resolve cases in the E-Verify system after a FNC is reported, you are subject of a civil money penalty ranging from $550-$1000 per case

Does E-Verify Provide Employer Sanctions Immunity?


No - Employer is solely liable if it gets sued The 1996 statute authorizing new hire

verifications provides civil immunity for actions taken in good faith - raised as good faith defense to wrongful discharge or discrimination claim

No law or regulation provides immunity from suit by existing workers

Does the Government Imdemnify an Employer for Actions Taken Based on E-Verify Information?


Contractor found to have used E-Verify to discriminate against individuals in hiring and employment

Contractor’s MOU Terminated by DHS Contractor found to have knowingly

hired unauthorized workers or committed immigration crimes

Debarment Grounds


Make compliance material term in subcontract

Require independent third party audit and certification of compliance after 180 days

Require Subcontractor certification of compliance on weekly payrolls

Require Subcontractor cooperation in any internal or Gov’t investigation or audit relating to E-Verify, I-9 or immigration compliance (including document fraud and identity theft)

Require prompt notification of Gov’t investigation of Subcontractor and/or its Subcontractors relating to E-Verify, I-9 or immigration compliance (including document fraud and identity theft)

I-9 Subcontractor Employees Audit Subcontractor I-9s Interrogate Subcontractor

employees regarding immigration status

Require Subcontractors to register you as their Designated Agent in E-Verify system

Accessing the E-Verify database to investigate the immigration status of Subcontractor employees

Policing Subcontractors


Conduct detectable through DHS data mining• Excessive E-Verify use including prescreening applicants• Under-use of E-Verify including selective verification• Failure to resolve and close FNC cases• Use of duplicate employee names and SSN#s

Complaints by Government investigators, civil rights groups and unions alleging unauthorized or discriminatory use of E-Verify data

Contract auditor and COTR referrals

DHS Audit Triggers

www.khlaw.comWashington, D.C. ● Brussels ● San Francisco ● Shanghai

Mary PivecPartner

Keller and Heckman LLP1001 G Street, N.W.

Washington, DC 20001202-434-4298

[email protected]

Thank You!

Documents

Ali Aba Far E Verify Presentation