On June 6, 2008, President Bush signed an amendment to Executive Order 12989 requiring certain federal contractors to participate in the Department of Homeland Security’s electronic system for verifying the employment eligibility of workers.

The E-Verify System

Since 1986, federal law has required all employers to verify the identity and employment eligibility of each newly hired employee by reviewing identity documents provided by the new hire and by completing a Form I-9 on the individual within three days of the start of employment. To assist employers in verifying the employment eligibility of newly hired employees, the Department of Homeland Security (DHS) and the Social Security Administration (SSA) jointly established a voluntary and free electronic system now known as E-Verify in 1997. E-Verify allows employers to send information from a newly hired employee’s Form I-9 to SSA and DHS to ensure that the employee’s name, Social Security number, citizenship status, and certain other information match government records. The recent amendments to Executive Order 12989 will make the use of E-Verify mandatory for covered federal contractors.

 Read the entire Kilpatrick Stockton Legal Alert here.

In response to a Complaint filed in the U.S. District Court for the Northern District of California by the AFL-CIO and other labor organizations, U.S. District Judge Maxine M. Chesney on August 31, 2007, issued a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction regarding the recently-issued Safe Harbor Regulations Regarding No-Match Letters. The TRO states:

The Court finds that Plaintiffs have raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration. The Court also finds that Plaintiffs have demonstrated that the balance of harms tips sharply in favor of a stay based on Plaintiffs’ sowing that they and their members would suffer irreparable harm if the rule is implemented while Defendants would suffer significantly less harm from the delay in the implementation of the rule pending consideration of Plaintiffs’ claims.

Accordingly, IT IS HEREBY ORDERED that, pending a hearing in whether a preliminary injunction should issue, Defendants MICHAEL CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF HOMELAND SECURITY; JULIE MYERS, Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MICHAEL ASTRUE, Commissioner of Social Security; and SOCIAL SECURITY ADMINISTRATION, and their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them, are HEREBY ENJOINED AND RESTRAINED from giving any effect to or otherwise taking any action to implement the Final Rule adopted by the Department of Homeland Security entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” that was published at 77 Fed. Reg. 45611 (Aug. 15, 2007), including by mailing or otherwise causing to be sent to employers the Social Security Administration no-match letter packets that include the Department of Homeland Security guidance letter concerning the Final Rule.

A hearing on Plaintiffs’ Motion for Preliminary Injunction is scheduled for October 1, 2007 at 2:30 p.m.

Additional Reading:

• A copy of the Complaint and Temporary Restraining Order are available via the National Immigration Law Center.
• Prior story: Safe Harbor Regulations Regarding No-Match Letters

U.S. employers annually send the Social Security Administration (SSA) millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number does not match SSA records.  In some of these cases (specifically, situations where a company has more than 10 workers whose names/numbers do not match and those workers represent at least one-half of one percent of the company’s workforce), the SSA sends a letter that informs the employer of this fact.  The letter is commonly referred to as a “no-match letter.”  Another federal agency, Immigration and Customs Enforcement (ICE), sends out a similar letter when it is unable to confirm that an immigration-status document or employment-authorization document referenced by an employee completing a Form I-9 was actually assigned to that person.  The receipt of a no-match letter raises issues about whether the employee who is the subject of the letter is authorized to work in the United States.  On August 10, 2007, the Department of Homeland Security (DHS) issued final regulations addressing the legal obligations of employers once they receive a no-match letter from the SSA or ICE. 

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