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FMG Law Blog Line

Department Of Homeland Security Abandons No-Match Rules But Supports E-Verify

Posted on: July 9th, 2009

The Secretary of the Department of Homeland Security announced yesterday that the DHS intends to propose a regulation rescinding the Social Security “no-match” rules.  The no-match rules provide steps for employers to take when they receive letters informing them that an employee’s name and social security number do not match the social security administration’s records.  These rules, which were promulgated in 2007, were never implemented due to several legal challenges.  DHS Secretary Janet Napolitano released a statement noting that the no-match notices may take months or even longer to inform employers about a problem, and significantly, most of the problems were simply typographical errors or unreported name changes.   

In this same press release, Secretary Napolitano announced that the DHS intends to implement the Federal Acquisition Regulation E-Verify amendment which requires that some federal contracts include clauses requiring the use of E-Verify for all employees working under the contract.  E-Verify is a free web based verification system which compares an employee’s employment eligibility information from their Form I-9 against government databases in order to verify that the employee is authorized to work in the United States.  Prior to this press release, it was not clear whether the DHS would continue to support E-Verify and the Federal Acquisition Regulation, which were implemented by an Executive Order by President George W. Bush in October of 2008.

The regulation, which is scheduled to go into effect on September 8, 2009, requires some federal contractors and subcontractors to use E-Verify.  The rule applies to federal contracts which contain a term of longer than 120 days and are for an amount of more than $100,000.  The rule also applies to subcontractors working under a federal contract whose contract is for services or construction, if the contract has a value of at least $3,000.  This regulation will encompass all federal contracts fitting within the above requirements, including money provided under the American Recovery and Reinvestment Act (stimulus package).  There are limited exceptions for contracts involving items that are commercially available and considered “off the shelf,” as well as contracts for food and agricultural products shipped in bulk, and contracts for work to be performed outside of the United States.

This regulation has already been postponed four times since its originally scheduled implementation date of January 15, 2009.  In addition, there is a pending lawsuit in the District Court of Maryland challenging the constitutionality of the regulation.  Nonetheless, this press release confirms that the DHS is committed to the use of the E-Verify system.  Employers often criticize E-Verify, claiming that its results are inaccurate.  Secretary Napolitano addressed the concern that E-Verify results are often inaccurate, and promised that the DHS will continue to improve E-Verify, stating that new initiatives are underway to improve the Federal database accuracy and enhance E-Verify’s privacy protections.

In a related matter, the United States Senate approved an amendment extending the use of the E-Verify program through September 30, 2012.  The E-Verify program was scheduled to expire on September 30 of this year.

If you have any questions, please contact one of our Labor & Employment attorneys.

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