Duane Morris LLP
Valentine A. Brown
January 11, 2013

With the presidential election behind us and the Obama administration settling in for another 4 years, everyone is looking ahead to see what the new year might bring. There is one thing we can definitely count on: A continued emphasis on worksite and interior enforcement. I anticipate that 2013 will be a banner year for E-Verify and another strong year for ICE in the collection of I-9 fines and penalites.

E-Verify: On January 1, 2013 three more mandatory state level E-Verify measures took effect including North Carolina, Tennessee and Pennsylvania. The Pennsylvania’s Public Works Verification Act requires contractors and subcontractors on all public works projects to verify whether their workers are authorized to work in the US by using E-Verify. The Pennsylvania law applies to construction projects where the estimated cost is at least $25,000. See our upcoming blog post for more details on the PA law.

E-Verify already is required for either all or most employers in Arizona, Utah, Louisiana, Mississippi, Alabama, Georgia and South Carolina. A few other states have taken a similar stance as Pennsylvania and made its use mandatory only for public employers and/or contractors.

In 2013, it is possible that E-Verify could become mandatory nationwide, as a nationwide requirement will certainly be an important part of the immigration reform debate. However, even without a new nationwide requirement, employers can expect to see more E-Verify enforcement from the States as well as investigations of E-Verify related discrimination by the Department of Justice. In late 2012, we saw the first two such reported investigations and settlements.

E-Verify users should ensure that all personnel are well-trained on the system and on the documents presented during the I-9 and E-Verify process, especially when the system indicates that there is a tentative non-confirmation of employment eligibility. Care must be taken to follow all E-Verify requirements in the Memorandum of Understanding, so that employers do not run afoul of the immigration-related anti-discrimination provisions or the E-Verify requirements themselves.

I-9 Enforcement: DHS Secretary Napolitano testified before Congress in July regarding the progress that the DHS has made on immigration policies in this country. During her testimony, she indicated that worksite enforcement efforts will remain a top priority for the DHS. With record fines being imposed against employers for I-9 violations in FY 2012, the remainder of FY 2013 will be no different, and could be worse based upon DHS budget projections and funding requested.

Employers should ensure that their I-9 process is sound and I-9 personnel training is up to date. Procedures for completing I-9s must ensure that proper documentation is reviewed by employers while at the same time ensuring that the civil rights of employees are not violated through inadvertent immigration-related discrimination such as document abuse, or citizenship status discrimination.

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