Thank you for joining us! The “Confronting the New E-Verify Mandate for Federal Contractors” Webinar will begin shortly. Make sure you have access to the webinar materials! Find them at www.abc.org/e-verifywebinar .

PLEASE NOTE: The audio instructions for this webinar have been changed. Audio can now be accessed by dialing: (866) 576-7975 PIN: 177491 Materials, including PowerPoint, available at: www.abc.org/e-verifywebinar

Interested in a more in-depth look at E-Verify and other critical HR issues? Don’t miss the HR Construction Professionals Conference October 22-23, 2009 Disney’s Contemporary Resort ■ Lake Buena Vista, Fla. www.abc.org/hrconf Special Offer for E-Verify Webinar attendees: Register by Wednesday, Sept. 23 and save $50 on your registration! Contact Kia Lor at [email_address] or (812) 812-2021 to register.

Confronting The New E-Verify Mandate for Federal Contractors Mary E. Pivec, Esq, Keller and Heckman LLP Washington, D.C. (202) 434-4212 [email_address] Thursday, September 17, 2009 2:00 p.m. – 3:30 p.m. (ET)

E-Verify Overview

HARD HAT FACTS All Prime Federal Construction Contracts (includes ARRA) Awarded on or after September 8, 2009 Valued over $100,000 Performance over 120 Days Should contain FAR Clause 52.222-34

All Prime Federal Construction Contracts (includes ARRA)

Awarded on or after September 8, 2009

Valued over $100,000

Performance over 120 Days

Should contain FAR Clause 52.222-34

FLOW DOWN LIABILITY If You Are the Prime Contractor You must include the E-Verify Clause in all subcontracts valued above $3000 regardless of term You are liable for Subcontractor compliance at all tiers You must police Subcontractor compliance

If You Are the Prime Contractor

You must include the E-Verify Clause in all subcontracts valued above $3000 regardless of term

You are liable for Subcontractor compliance at all tiers

You must police Subcontractor compliance

Employees Assigned to 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 don’t generally apply to construction: Employee holds top secret security clearance Agency head waiver

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 don’t generally apply to construction:

Employee holds top secret security clearance

Agency head waiver

AFFILIATES OF THE CONTRACTING ENTITY 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

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

Touchy Independent Contractor Issues 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

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

COMPLIANCE TIME LINE Contract Award Day 1 Contractor Must Enroll in E-Verify and Sign MOU, or Update Registration to Federal Contractor Status No later than Day 31 No later than Day 120 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

TOTAL WORKFORCE OPTION Contract Award Day 1 Contractor Must Enroll in E-Verify and Sign MOU No later than Day 31 No later than Day 210 Contractor Must Have Entered E-Verify Queries for Total US Workforce and Begun E-Verifying All New US Hires Companywide within 3 Work Days

Compliance Countdown 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 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

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

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

I-9 AUDIT OPTION 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

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

WHEN AN EMPLOYEE MUST COMPLETE A NEW I-9 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

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

Mandatory Postings

Initial Verification Query

Case Details Page Reporting SSA TNC

Required Procedures If Employee Query Results in 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

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

PHOTO SCREEN PROCEDURE Activated automatically when Employer enters I-551 or I-766 data If available in DHS database, photo is displayed in Case Report Employee 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

Activated automatically when Employer enters I-551 or I-766 data

If available in DHS database, photo is displayed in Case Report

Employee 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

Forms of Prohibited Discrimination 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

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

DOES E-VERIFY PROVIDE EMPLOYER SANCTIONS IMMUNITY? 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

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 THE GOVERNMENT INDEMNIFY AN EMPLOYER FOR ACTIONS TAKEN BASED ON E-VERIFY INFORMATION? 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

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

DEBARMENT GROUNDS 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

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

Policing Subcontractors 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

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

DHS AUDIT TRIGGERS 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

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

Questions?

Thank you for your participation! Materials, including the PowerPoint presentation, are available at www.abc.org/e-verifywebinar . For more information, contact: Mary E. Pivec, Esq, Keller and Heckman LLP Washington, D.C. (202) 434-4212 [email_address]

Interested in a more in-depth look at E-Verify and other critical HR issues? Don’t miss the HR Construction Professionals Conference October 22-23, 2009 Disney’s Contemporary Resort ■ Lake Buena Vista, Fla. www.abc.org/hrconf Special Offer for E-Verify Webinar attendees: Register by Wednesday, Sept. 23 and save $50 on your registration! Contact Kia Lor at [email_address] or (812) 812-2021 to register.