Ali Aba Far E Verify Presentation
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Ali Aba Far E Verify Presentation

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Program describing scope and coverage of the new FAR E-Verify Rule, what employer/contractors need to do to prepare I-9s to verify existing workers, and how to avoid immigration discrimination and ...

Program describing scope and coverage of the new FAR E-Verify Rule, what employer/contractors need to do to prepare I-9s to verify existing workers, and how to avoid immigration discrimination and employer sanctions violations

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Ali Aba Far E Verify Presentation Ali Aba Far E Verify Presentation Presentation Transcript

  • Confronting The New E-Verify Mandate for Federal Contractors September 30, 2009
    • 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
  • Compliance Timeline 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 and designate Total Workforce option 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
    • 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
  • Mary Pivec Partner Keller and Heckman LLP 1001 G Street, N.W. Washington, DC 20001 202-434-4298 [email_address] Thank You!