Recent Developments: Employment Eligibility Verification

April 14, 2009

New I-9 Form
The new Form I-9 went into effect on April 3, 2009.  Employers should now be using this form, which adds the Employment Authorization Document to List A documents, which are documents valid for purposes of establishing both identity and employment authorization.  Certain documents such as a certificate of naturalization have been removed from List A.  Of note, new hires may no longer present an expired U.S. passport as a List A document.  However, new hires may present an unexpired U.S. passport or U.S. passport card as List A documents, and there is no indication that an employer must re-verify employment eligibility when the passport or passport card expires.  The updated Employer’s Handbook may be found here.  

E-Verify
The rule mandating that certain federal contractors participate in E-Verify has been delayed until at least June 30, 2009.  The current administration is reviewing the rule as it did with the new I-9 rule.  E-Verify is an online system for verifying employment eligibility in addition to the current I-9 process. Certain federal contractors whose government contracts are governed by the Federal Acquisition Regulations would be subject to the new rule.  See generally here. 

The federal government is taking the carrot and modified stick approach to encourage employers to participate in the E-Verify program, which is currently voluntary in Maine.  It is offering a possible extension of employment authorization for qualifying foreign students whose employers participate in E-Verify, and, as noted above, is considering making E-Verify participation “mandatory” for certain federal contractors.  The federal contractor requirement is currently the subject of litigation in federal court.  As a practical matter, employers may have foreign students with Science Technology Engineering and Math (“STEM”) degrees working in their period of Optional Practical Training approach them asking that they participate in E-Verify so that they may take advantage of this benefit.  

For the time being, most employers should hold off on taking the plunge.  Should the federal contractor rule go into effect in its current form, subject employers would have sufficient time to enroll in E-Verify should that become necessary.  The E-Verify program is an additional administrative burden, the Memorandum of Understanding that participating employers must sign has its downsides, and participating employers essentially consent to visits from immigration without the standard 3-day notice provided in the I-9 regulation.

Please contact Matthew S. Raynes for further information.

This paper is provided as general information, and is not a substitute for legal or other professional advice.