Dive Brief:
- A proposed rule issued by multiple U.S. government agencies last month would require E-Verify participation for recipients and subrecipients of federal grants and similar financial assistance.
- According to the text of the rule published May 29 in the Federal Register, the White House Office of Management and Budget proposed adding the requirement as an “additional safeguard” to ensure employment eligibility of all employees and contractors hired in or performing work under a federal award.
- However, OMB said the proposal would not alter existing exceptions or limitations recognized in U.S. Department of Homeland Security program requirements and other applicable federal law. The agencies set a deadline of July 13 for public comments on the proposed rule.
Dive Insight:
DHS’ E-Verify program allows employers to electronically confirm a worker’s employment eligibility by comparing information entered by the employer — such as that from a Form I-9 — with the government’s own records. The program touts a free process with results delivered within three to five seconds at its fastest, but employment attorneys have consistently cautioned that the program is not a foolproof tool for avoiding regulators’ scrutiny.
For example, employers enrolled in E-Verify still may be audited, and participants also still may be targeted for enforcement operations. One notable case occurred last year, when U.S. Immigration and Customs Enforcement raided a Nebraska meat production facility and detained some 70 workers even though the company had participated in E-Verify. At the time, a Republican congressman said that the business “complied with E-Verify 100%.”
The incident served as a reminder of the program’s flaws, sources previously told HR Dive. DHS cautioned employers last year to regularly generate status change reports which show whether a worker’s authorization status has been revoked. If this occurs, the employer must immediately reverify each employee, DHS said.
E-Verify has long been mandatory for certain federal contractors and subcontractors dating back to a 2009 rule. But the proposed requirement announced May 29 is part of a “sweeping reorientation of federal award management policy,” attorneys with law firm Ropes & Gray said in a June 2 analysis. The firm advised entities affected by the proposed rule to take actions including enrolling or confirming participation in E-Verify.
Employers may face even broader scrutiny of their electronic immigration compliance records, sources previously told HR Dive, specifically if they utilize noncompliant electronic Form I-9 vendors that fail to adhere to DHS regulations on access, recordkeeping and storage of those documents.