New Guidance on E-Verify
Under current Federal Acquisition Regulation (FAR) implementing rules defining the obligation of federal contractors to use E-Verify, federal contracts may now contain a FAR E-Verify clause. If a Federal contract contains the FAR E-Verify clause, the federal contractor is required to use E-Verify for new hires and all employees (existing and new) assigned to the federal contract.
Participation in E-Verify is voluntary for employers without federal contracts, as well as for federal contractors that are exempt under the E-Verify rules because the contract is too short (less than 120 days), too small (less than $100,000), all work is performed outside the U.S., or the contract includes only commercially-available off-the-shelf items and related services. Even if a federal contractor is not exempt under the E-Verify rules, participation in E-Verify is voluntary until the contractor is required to participate under a FAR E-Verify clause in its federal contract.
United States Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA) have recently published an E-Verify “quick reference guide” for employers, along with a joint USCIS/SSA PowerPoint presentation on E-Verify and revised E-Verify FAQs.
ICE Announces Employer Inspections in Five States
United States Immigration and Customs Enforcement (ICE) has announced that it is issuing Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with I-9 employment eligibility verification laws and regulations.
This ICE enforcement initiative is part of a strategy to reduce the demand for illegal employment and protect employment opportunities for U.S. workers. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of “cultivating illegal workplaces” by knowingly employing illegal workers.
DOL Publishes H-2A Final Rule
The United States Department of Labor (DOL) published a final rule in the February 12 Federal Register for the labor certification process and enforcement of the H-2A temporary agricultural worker program. The rule will be effective March 15, 2010.
The H-2A nonimmigrant visa classification is available for foreign workers performing agricultural work of a temporary or seasonal nature in the United States. In order to be eligible for H-2A status, DOL must certify that there are not sufficient U.S. workers qualified and available to perform the work and that the employment of the foreign worker will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers. The new final rule amends DOL regulations governing the certification of H-2A workers, the contractual obligations of H-2A employers, and DOL enforcement.
DHS Report on Unauthorized Immigrants in the United States
The United States Department of Homeland Security (DHS) has released a report estimating that the unauthorized immigrant population living in the United States decreased to 10.8 million in January 2009 from 11.6 million in January 2008.
The report also finds that between 2000 and 2009, the unauthorized population grew by 27 percent and that, of all unauthorized immigrants living in the United States in 2009, 63 percent entered before 2000, and 62 percent were from Mexico.
The report provides estimates of the number of unauthorized immigrants residing in the United States as of January 2009 by period of entry, region and country of origin, state of residence, age, and gender. The estimates were obtained using a “residual” methodology that estimates the unauthorized populations as the remainder after estimates of the legally resident foreign-born population are subtracted from estimates of the total foreign-born population.
USCIS Issues Guidance on the H-1B Employer-Employee Relationship
United States Citizenship and Immigration Services (USCIS) has issued a new memorandum to Service Center Directors providing guidance on determining the employer-employee relationship in adjudicating H-1B petitions, with particular focus on determining H-1B eligibility in situations where the H-1B worker is placed on a third-party worksite.
H-1B employers are required to establish that an employer-employee relationship exists with the H-1B worker and will continue to exist throughout the duration of the H-1B validity period. The new USCIS memorandum notes that, in applying this requirement, there has been a lack of guidance clearly defining what constitutes a valid employer-employee relationship, creating problems, in particular, with independent contractors, self-employed H-1B workers, and H-1B workers placed at third-party worksites.
The memorandum clearly signals that USCIS will tighten enforcement of the employer-employee requirements and that H-1Bs will be very closely scrutinized when the H-1B employer is engaged in contracting out its H-1B workers to fill third-party vacancies.