Legal Issues Impacting Your Business
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President Bush Orders Federal Contractors to Use E-Verify
The Executive Oder ("EO") signed June 6 and issued Tuesday, reproduced at the end of this email, will require private companies contracting with the federal government to use the E-Verify (electronic employment verification) system.
We have attached a draft copy of the implementing regulations will be published soon, and it appears that compliance is not mandated until such regulations are published.
We are still analyzing the regulations and will provide further guidance as soon as possible.
About E-Verify
E-Verify is an on-line system that allows the work eligibility of an employee to be checked with the Immigration Service and Social Security databases. It will not catch ID theft, but will catch fake IDs. Because of data errors in the system at the rate of about 4%, some employers have experienced problems with false negatives, requiring employee time off to resolve discrepancies. The system is not to be used for pre-screening, but is accessed after the I-9 is completed. Anti-discrimination provisions of the law still apply, so companies must be careful to use E-Verify for all affected employees, rather than for a particular group.
For more information about the limitations of E-Verify, go to http://www.immigrationpolicy.org/index.php?content=fc080402
For information about registering for E-Verify, go to http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm
We would be happy to assist you with any questions about E-Verify also.
EB-3 Category to Become Unavailable in July
The Department of State has just announced that as of July 1, no more EB-3 visas (certain employment-based visas) will be available until October 1.
Adjustment of Status applications will be accepted through the end of June (last mailing date will be Saturday June 28 for arrival Monday, June 30).
The EB-3 category is for jobs that require less than an advanced degree (master's degree) or equivalent. This applies to cases where the I-140 has been approved and the visa number is current to file the adjustment of status application (I-485) according to the June Visa Bulletin.
If you are working on your adjustment of status application, please be aware of this deadline. We will attempt to identify affected clients and work with you to file by June 28.
H-1B Cap Case Have All Been Receipted
The Immigration Service announced today that the all H-1B cap cases have been receipted. If we do not have your receipt within the next few days, you should expect the return of your case soon.
Please contact us if you have questions about arrangements for maintaining your status in the United States in light of this development.
Premium Processing to be Accepted on Some I-140 Cases
The Immigration Service announced yesterday (yes, they have been busy), that they will accept premium processing on I-140s if the beneficiary is in the sixth year of H-1B status which will expire within 60 days and the only option for extension of that status is with the approval of the I-140.
Premium processing will result in adjudication on an expedited basis upon payment of an additional $1,000 filing fee.
We know all these development raise many questions and we will be glad to work through them with you.
Lori Chesser
EXECUTIVE ORDER
AMENDING EXECUTIVE ORDER 12989, AS AMENDED
By the authority vested in me as President by the Constitution and the
laws of the United States of America, including subsection 121(a) of
title 40 and section 301 of title 3, United States Code, and in order to
take further steps to promote economy and efficiency in Federal
Government procurement, it is hereby ordered as follows:
Section 1. Executive Order 12989 of February 13, 1996, as amended,
is further amended:
(a) by striking the title and inserting in lieu thereof "Economy
and Efficiency in Government Procurement Through Compliance with Certain
Immigration and Nationality Act Provisions and Use of an Electronic
Employment Eligibility Verification System"; and
(b) by striking the material that follows the title and precedes
section 1 of the order and inserting in lieu thereof the following:
"This order is designed to promote economy and efficiency in
Federal Government procurement. Stability and dependability are
important elements of economy and efficiency. A contractor whose
workforce is less stable will be less likely to produce goods and
services economically and efficiently than a contractor whose workforce
is more stable. It is the policy of the executive branch to enforce
fully the immigration laws of the United States, including the detection
and removal of illegal aliens and the imposition of legal sanctions
against employers that hire illegal aliens. Because of the worksite
enforcement policy of the United States and the underlying obligation of
the executive branch to enforce the immigration laws, contractors that
employ illegal aliens cannot rely on the continuing availability and
service of those illegal workers, and such contractors inevitably will
have a less stable and less dependable workforce than contractors that
do not employ such persons. Where a contractor assigns illegal aliens
to work on Federal contracts, the enforcement of Federal immigration
laws imposes a direct risk of disruption, delay, and increased expense
in Federal contracting. Such contractors are less dependable
procurement sources, even if they do not knowingly hire or knowingly
continue to employ unauthorized workers.
"Contractors that adopt rigorous employment eligibility
confirmation policies are much less likely to face immigration
enforcement actions, because they are less likely to employ unauthorized
workers, and they are therefore generally more efficient and dependable
procurement sources than contractors that do not employ the best
available measures to verify the work eligibility of their workforce.
It is the policy of the executive branch to use an electronic employment
verification system because, among other reasons, it provides the best
available means to confirm the identity and work eligibility of all
employees that join the Federal workforce. Private employers that
choose to contract with the Federal Government should meet the same
standard.
"I find, therefore, that adherence to the general policy of
contracting only with providers that do not knowingly employ
unauthorized alien workers and that have agreed to utilize an electronic
employment verification system designated by the Secretary of Homeland
Security to confirm the employment eligibility of their workforce will
promote economy and efficiency in Federal procurement.
"NOW, THEREFORE, to ensure the economical and efficient
administration and completion of Federal Government contracts, and by
the authority vested in me as President by the Constitution and the laws
of the United States of America, including subsection 121(a) of title 40
and section 301 of title 3, United States Code, it is hereby ordered as
follows:".
Sec. 2. Section 1 of Executive Order 12989, as amended, is further
amended by:
(a) striking the last sentence in subsection 1(a); and
(b) striking subsection (b) and inserting in lieu thereof the
following new subsections:
"(b) It is the policy of the executive branch in procuring goods and
services that, to ensure the economical and efficient administration and
completion of Federal Government contracts, contracting agencies may not
enter into contracts with employers that do not use the best available
means to confirm the work authorization of their workforce.
"(c) It is the policy of the executive branch to enforce fully the
antidiscrimination provisions of the INA. Nothing in this order
relieves employers of antidiscrimination obligations under section 274B
of the INA (8 U.S.C. 1324b) or any other law.
"(d) All discretion under this order shall be exercised consistent with
the policies set forth in this section.".
Sec. 3. Section 5 of Executive Order 12989, as amended, is
further amended to read as follows:
"Sec. 5. (a) Executive departments and agencies that enter into
contracts shall require, as a condition of each contract, that the
contractor agree to use an electronic employment eligibility
verification system designated by the Secretary of Homeland Security to
verify the employment eligibility of: (i) all persons hired during the
contract term by the contractor to perform employment duties within the
United States; and (ii) all persons assigned by the contractor to
perform work within the United States on the Federal contract.
"(b) The Secretary of Homeland Security:
"(i) shall administer, maintain, and modify as necessary and
appropriate the electronic employment eligibility verification system
designated by the Secretary under subsection (a) of this section; and
"(ii) may establish with respect to such electronic employment
verification system:
"(A) terms and conditions for use of the system; and
"(B) procedures for monitoring the use, failure to use, or
improper use of the system.
"(c) The Secretary of Defense, the Administrator of General
Services, and the Administrator of the National Aeronautics and Space
Administration shall amend the Federal Acquisition Regulation to the
extent necessary and appropriate to implement the debarment
responsibility, the employment eligibility verification responsibility,
and other related responsibilities assigned to heads of departments and
agencies under this order.
"(d) Except to the extent otherwise specified by law or this
order, the Secretary of Homeland Security and the Attorney General:
"(i) shall administer and enforce this order; and
"(ii) may, after consultation to the extent appropriate with the
Secretary of Defense, the Secretary of Labor, the Administrator of
General Services, the Administrator of the National Aeronautics and
Space Administration, the Administrator for Federal Procurement Policy,
and the heads of such other departments or agencies as may be
appropriate, issue such rules, regulations, or orders, or establish such
requirements, as may be necessary and appropriate to implement this
order.".
Sec. 4. Section 7 of Executive Order 12989, as amended, is amended
by striking "respective agencies" and inserting in lieu thereof
"respective departments or agencies".
Sec. 5. Section 8 of Executive Order 12989, as amended, is amended to
read as follows:
"Sec. 8. (a) This order shall be implemented in a manner intended
to minimize the burden on participants in the Federal procurement
process.
"(b) This order shall be implemented in a manner consistent with
the protection of intelligence and law enforcement sources, methods, and
activities from unauthorized disclosure.".
Sec. 6. Section 9 of Executive Order 12989, as amended, is amended
to read as follows:
"Sec. 9. (a) Nothing in this order shall be construed to impair
or otherwise affect:
(i) authority granted by law to a department or agency or the head
thereof; or
(ii) functions of the Director of the Office of Management and
Budget relating to budget, administrative, or legislative proposals.
"(b) This order shall be implemented consistent with applicable
law and subject to the availability of appropriations.
"(c) This order is not intended to, and does not, create any right
or benefit, substantive or procedural, enforceable at law or in equity,
by any party against the United States, its departments, agencies or
entities, its officers, employees, or agents, or any other person.".
Sec. 7. This order is not intended to, and does not, create any
right or benefit, substantive or procedural, enforceable at law or in
equity, by any party against the United States, its departments,
agencies or entities, its officers, employees, or agents, or any other
person.
GEORGE W. BUSH
THE WHITE HOUSE,
June 6, 2008.
