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[Federal Register: November 14, 2008 (Volume 73, Number 221)]
[Rules and Regulations]
[Page 67651-67705]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no08-30]
[[Page 67651]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 22, and 52
[FAC 2005-29; FAR Case 2007-013; Docket 2008-0001; Sequence 1]
RIN 9000-AK91
Federal Acquisition Regulation; FAR Case 2007-013, Employment
Eligibility Verification
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to require certain
contractors and subcontractors to use the E-Verify system administered
by the Department of Homeland Security, U.S. Citizenship and
Immigration Services, as the means of verifying that certain of their
employees are eligible to work in the United States.
DATES: Effective Date: January 15, 2009.
Applicability Date: Contracting Officers should modify, on a
bilateral basis, existing indefinite-delivery/ indefinite-quantity
contracts in accordance with FAR 1.108(d)(3) to include the clause for
future orders if the remaining period of performance extends at least
six months after the final rule effective date, and the amount of work
or number of orders expected under the remaining performance period is
substantial.
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement
Analyst, at (202) 208-6925 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-29, FAR case
2007-013.
SUPPLEMENTARY INFORMATION:
A. Background and Purpose
Employment Eligibility Verification Requirements
As explained more fully in the proposed rule, the Federal Property
and Administrative Services Act of 1949 (FPASA), authorizes the
President to ``prescribe policies and directives'' governing
procurement policy ``that the President considers necessary to carry
out'' that Act and that are ``consistent'' with the Act's purpose of
``provid[ing] the Federal Government with an economical and efficient''
procurement system. 40 U.S.C. 101, 121. On June 6, 2008, the President
exercised this authority and the authority vested in him under section
301 of Title 3 of the United States Code in issuing Executive Order
13465 ``Economy and Efficiency in Government Procurement through
Compliance with Certain Immigration and Nationality Act Provisions and
the Use of an Electronic Employment Eligibility Verification System.''
73 FR 33285, Jun. 11, 2008, amending Executive Order 12989 (signed
February 13, 1996, published February 15, 1996 at 61 FR 6091),
previously amended by Executive Order 13286 (signed February 28, 2003,
published March 5, 2003 at 68 FR 10619). As amended, Executive Order
12989 now provides, at Section 5.(a), that ``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 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.'' The Executive Order also requires, at Section 5.(c), that
the Secretary of Defense, the Administrator of General Services and the
Administrator of the National Aeronautics and Space Administration
``amend the Federal Acquisition Regulation to the extent necessary and
appropriate to implement the * * * employment eligibility verification
responsibility * * * assigned to heads of departments and agencies
under this order.''
On June 9, 2008, the Secretary of Homeland Security designated the
``E-Verify system, modified as necessary and appropriate to accommodate
the policy set forth in the Executive Order * * * as the electronic
employment eligibility verification system to be used by Federal
contractors.'' (See 73 FR 33837, Jun. 13, 2008.)
This final rule responds to these requirements, and the Secretary's
designation, by amending the FAR to require certain Federal contractors
and subcontractors to use the E-Verify system (E-Verify) administered
by the Department of Homeland Security (DHS), U.S. Citizenship and
Immigration Services (USCIS) as the means of verifying that certain of
their employees are authorized to work in the United States.
E-Verify Program
The E-Verify system, formerly known as the Basic Pilot/Employment
Eligibility Verification Program, is an Internet-based system operated
by DHS USCIS, in partnership with the Social Security Administration
(SSA) that allows participating employers to electronically verify the
employment eligibility of their newly hired employees. E-Verify
represents the best means currently available for employers to verify
the work authorization of their employees.
Before an employer can use the E-Verify system, the employer must
enroll in the program and agree to the E-Verify Memorandum of
Understanding (MOU) required for program participants. The terms of the
MOU are established by USCIS and are not negotiated with each
participant. In consenting to the MOU, employers agree to abide by
current legal hiring procedures and to ensure that no employee will be
unfairly discriminated against in the use of the E-Verify program.
Violation of the terms of the MOU by the employer is grounds for
termination of the employer's participation in the E-Verify program.
Current law (8 U.S.C. 1324a(b)) requires all employers in the
United States to complete an Employment Eligibility Verification Form
(Form I-9) for each newly hired employee to verify each employee's
identity and employment eligibility. Under this final rule, Federal
contractors will additionally enter the worker's identity and
employment eligibility information into the E-Verify system, which
checks that information against information contained in SSA, USCIS and
other Government databases.
SSA first verifies that the name, social security number (SSN), and
date of birth are correct and, if the employee has stated that he or
she is a U.S. citizen, confirms U.S. citizen status through its
databases. If the system confirms identity and U.S. citizenship, and
there are no other indicators that the information is not correct, SSA
confirms employment-eligibility. USCIS also verifies through database
checks that any non-U.S. citizen employee is in an employment-
authorized immigration status.
If the information provided by the worker matches the information
in the SSA and USCIS records, no further action will be required. E-
Verify procedures require only that the employer record on the Form I-9
the
[[Page 67652]]
verification identification number and the result obtained from the E-
Verify query or print a copy of the transaction record and retain it
with the Form I-9.
If SSA is unable to verify information presented by the worker, the
employer will receive an ``SSA Tentative Nonconfirmation'' notice.
Similarly, if USCIS is unable to verify information presented by the
worker, the employer will receive a ``DHS Tentative Nonconfirmation''
notice. Employers can receive a tentative nonconfirmation notice for a
variety of reasons, including inaccurate entry of information by the
employer into the E-Verify Web site, and changes in the worker's name
or immigration status that the worker has not updated in the SSA
database searched by the E-Verify system. If the individual's
information does not match the SSA or USCIS records, the employer must
provide the worker with a written notice generated by the E-Verify
system, called a ``Notice to Employee of Tentative Nonconfirmation''.
The worker must then indicate on the notice whether he or she contests
or does not contest the finding reflected in the tentative
nonconfirmation that he or she appears unauthorized to work, and both
the worker and the employer must sign the notice.
If the worker chooses to contest the tentative nonconfirmation, the
employer must print a second notice generated by the E-Verify system,
called a ``Referral Letter,'' which contains information about
resolving the tentative nonconfirmation, as well as the contact
information for SSA or USCIS, depending on which agency was the source
of the tentative nonconfirmation. The worker then has eight Federal
Government workdays to visit an SSA office or call USCIS to try to
resolve the discrepancy. Under the E-Verify MOU, if the worker contests
the tentative nonconfirmation, the employer is prohibited from
terminating or otherwise taking adverse action against the worker while
he or she awaits a final resolution from the Federal Government agency.
If the worker fails to contest the tentative nonconfirmation, or if SSA
or USCIS is unable to resolve the discrepancy, the employer will
receive a notice of final nonconfirmation and the worker's employment
may be terminated.
Participation in E-Verify does not exempt the employer from the
responsibility to complete, retain, and make available for inspection
Forms I-9 that relate to its employees, or from other requirements of
applicable regulations or laws. However, the following modified
requirements apply by reason of the employer's participation in E-
Verify: (1) Identity documents used for verification purposes must have
photos (except as discussed below with respect to accommodations); (2)
if an employer obtains confirmation of the identity and employment
eligibility of an individual in compliance with the terms and
conditions of E-Verify, a rebuttable presumption is established that
the employer has not violated section 274A(a)(1)(A) of the Immigration
and Nationality Act (INA) with respect to the hiring of the individual;
(3) the employer must notify DHS if it continues to employ any employee
for whom the employer has received a final nonconfirmation, and the
employer is subject to a civil money penalty between $500 and $1,000
for each failure to notify DHS of continued employment following a
final nonconfirmation; (4) if an employer continues to employ an
employee after receiving a final nonconfirmation and that employee is
subsequently found to be an unauthorized alien, the employer is subject
to a rebuttable presumption that it has knowingly employed an
unauthorized alien in violation of Immigration and Nationality Act
(INA) section 274A(a); and (5) no person or entity participating in E-
Verify is civilly or criminally liable under any law for any action
taken in good faith reliance on information provided through the
confirmation system.
Further information on registration for and use of E-Verify can be
obtained via the Internet at http://www.dhs.gov/E-Verify.
E-Verify Basis and Development
1. Legislative History
Laws pertaining to the control of illegal immigration have received
serious attention from Congress and the Executive Branch since at least
the early 1950s. Chief among the legislative approaches to these
problems has been the proposed establishment of penalties for the
employment of undocumented aliens and related laws requiring the
verification of employment authorization. See INA Section 274(a),
codified at 8 U.S.C. 1324(a). The House of Representatives Report filed
with the Immigration Reform and Control Act of 1986 (IRCA), found at
1986 U.S. Code Cong. and Adm. News, p. 5649, clearly describes the
basis for that legislation:
This legislation seeks to close the back door on illegal
immigration so that the front door on legal immigration may remain
open. The principal means of closing the back door, or curtailing
future illegal immigration, is through employer sanctions. The bill
would prohibit the employment of aliens who are unauthorized to work
in the United States because they either entered the country
illegally, or are in an immigration status which does not permit
employment. U.S. employers who violate this prohibition would be
subject to civil and criminal penalties. Employment is the magnet
that attracts aliens here illegally or, in the case of
nonimmigrants, leads them to accept employment in violation of their
status. Employers will be deterred by the penalties in this
legislation from hiring unauthorized aliens and this, in turn, will
deter aliens from entering illegally or violating their status in
search of employment. The logic of this approach has been recognized
and backed by the past four administrations * * *. Now, as in the
past, the Committee remains convinced that legislation containing
employer sanctions is the most humane, credible and effective way to
respond to the large-scale influx of undocumented aliens. While
there is no doubt that many who enter illegally do so for the best
of motives--to seek a better life for themselves and their
families--immigration must proceed in a legal, orderly and regulated
fashion. As a sovereign nation, we must secure our borders.
H.R. Rep. No. 99-682(I), 99th Cong., 1st Sess. 46 (1986), 1986 U.S.
Code Cong. & Admin. News, p. 5649. INA Section 274A, as established by
IRCA, thus prohibits any ``person or other entity'' from knowingly
hiring, or knowingly continuing to employ, any unauthorized alien. INA
section 274A(b) provides for an ``Employment Verification System,''
which requires that employers attest, after examination of
documentation presented by the employee, that the person being hired,
recruited or referred for employment is not an unauthorized alien. INA
section 274A also provides for the assessment of civil monetary
penalties and cease and desist orders against any employer that has
knowingly hired or continued to employ an unauthorized alien, or that
has failed to comply with the employment verification system mandated
by INA section 274A(b). 8 U.S.C. 1324a(e)(4)-(e)(5).
Employers who engage in a ``pattern or practice'' of violating the
prohibition against illegal employment of unauthorized workers may face
criminal sanctions. INA section 274A(f), 8 U.S.C. 1324a(f). DHS U.S.
Immigration and Customs Enforcement (ICE) investigates complaints of
potential violations of INA section 274A by inspecting employment
eligibility verification forms maintained by employers with respect to
their current and former employees, and compelling the production of
evidence or the attendance of witnesses by subpoena. 8 U.S.C.
1324a(e)(2); 8 CFR 274a.2(b)(2).
[[Page 67653]]
Development of E-Verify
E-Verify provides a modern means of verifying employment
authorization information in addition to the traditional I-9 process.
When Congress established the paper-based employment verification
system in 8 U.S.C. 1324a(b), it directed the President to evaluate that
system's security and efficacy and implement necessary changes, subject
to congressional oversight. 8 U.S.C. 1324a(d). Congress also authorized
the President to establish demonstration projects designed to
strengthen the employment verification system. 8 U.S.C. 1324a(d)(4).
The first demonstration project, in 1992, included the Telephone
Verification System (TVS) pilot program--a predecessor to the E-Verify
system. 69 Interpreter Releases 702 (June 8, 1992); 515 (Apr. 27,
1992). In 1996, Congress established the Basic Pilot program--now
called E-Verify--as part of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA). Public Law 104-208, Sections
401-405, 110 Stat. 3009-655-3009-666 (1996) (8 U.S.C. 1324a note).
On August 10, 2007, the Acting Director of the Office of Management
and Budget instructed agencies to encourage their existing and future
contractors to use E-Verify and attached a letter that DHS had sent to
its major contractors encouraging their use of E-Verify and emphasizing
E-Verify's ability to help contractors comply with immigration law. See
``Memorandum for the Heads of Departments and Agencies M-07-21,''
Stephen S. McMillin, Acting Director, Office of Management and Budget
(August 10, 2007) (http://www.whitehouse.gov/omb/memoranda/fy2007/m07-
21.pdf) attaching ``Letter from Paul A. Schneider, Under Secretary for
Management'' (Aug. 10, 2007). The OMB Memorandum also announced that
the Federal Acquisition Regulatory Council was developing appropriate
Governmentwide regulatory coverage to apply E-Verify to Federal
contractors. It also indicated that by October 1, 2007, all Federal
departments and agencies should begin verifying their new hires through
E-Verify.
Compliance Requirements for Federal Contractors
The Executive branch has long recognized that the instability and
lack of dependability that afflicts contractors that employ
unauthorized workers undermines overall efficiency and economy in
Government contracting. The first formal expression of this policy is
found in Executive Order 12989, signed by President Clinton in February
1996. (See 61 FR 6091, Feb. 15, 1996.) That Order, which pre-dated
Congress's enactment of IIRIRA authorizing what is now the E-Verify
program, found that the presence of unauthorized aliens on a
contractor's workforce rendered that contractor's workforce less stable
and reliable than the workforces of contractors who do not employ
unauthorized aliens:
Stability and dependability are important elements of economy
and efficiency. A contractor whose work force is less stable will be
less likely to produce goods and services economically and
efficiently than a contractor whose work force is more stable. It
remains the policy of this Administration to enforce the immigration
laws to the fullest extent, including the detection and deportation
of illegal aliens. In these circumstances, contractors cannot rely
on the continuing availability and service of illegal aliens, and
contractors that choose to employ unauthorized aliens inevitably
will have a less stable and less dependable work force than
contractors that do not employ such persons. Because of this
Administration's vigorous enforcement policy, contractors that
employ unauthorized alien workers are necessarily less stable and
dependable procurement sources than contractors that do not hire
such persons. I find, therefore, that adherence to the general
policy of not contracting with providers that knowingly employ
unauthorized alien workers will promote economy and efficiency in
Federal procurement.
Executive Order 12989 (preamble), 61 FR 6091. This finding is as
applicable today as it was in 1996. The Government is aware, in
particular, of recent instances where Federal Government contracts have
been disrupted when the contractor's employees were identified as
unauthorized workers. See, e.g., Tami Abdollah, ``2 Sentenced for
Hiring Illegal Migrants; Golden State Fence Executives Get Probation
and Fines, and the Company is Ordered to Forfeit $4.7 Million in
Profits,'' Los Angeles Times, March 29, 2007, (detailing the criminal
prosecution of two Federal Contractor company executives for hiring
illegal workers that resulted in a guilty plea; judgment of probation
and combined $300,000 in fines for the two individuals in addition to
the forfeiture of $4.7 million in company profits the company reaped by
employing unauthorized immigrant workers); Karen Lee Ziner, ``3 at
Bianco Plant Indicted on Immigration Charges,'' Providence Journal
Bulletin, August 4, 2007, at A3 (reporting the indictment of company
president along with two managers for ``conspiring to harbor and hire
illegal immigrants'' to work on Government contracts valued over $200
million); Mark Bowes, ``U.S. Immigration Agents Arrest 33: Workers at
Richmond Site of New Federal Courthouse Alleged to be Here Illegally,''
Richmond Times Dispatch, May 8, 2008, at B3 (reporting the arrest of 33
alleged illegal immigrant workers employed by a Federal contractor
during a raid by immigration authorities at the construction site of a
future Federal courthouse in Richmond, Virginia); Giovanna Dell'Orto,
``Illegal Immigrants Arrested at Military Bases,'' Press-Register,
January 20, 2007, at B12 (publishing an article on the arrest of
roughly 40 illegal immigrant workers over a three day period that were
hired by Federal contractors to work at three different military bases
including Fort Benning in Georgia and the Marine Corp Base Quantico in
Virginia); Rob Bell, ``Mills Manufacturing Corporation Raided by ICE,''
Western Carolina Business Journal, August 15, 2008 (reporting that
immigration officials raided a Federal defense contractor and arrested
57 illegal immigrant workers).
Consistent with the President's authority under FPASA, and to
``ensure the economical and efficient administration and completion of
Federal Government contracts,'' Executive Order 12989 instructed the
Attorney General of the Department of Justice to investigate to
determine whether a contractor or an organizational unit thereof is not
in compliance with the INA employment provisions, transmit that
determination to the contracting agency and have the head of the
contracting agency pursue debarment or other such action as may be
appropriate under the FAR. (See Executive Order 12989, Sections 3 and
4.) With the establishment of the DHS, the Attorney General's
investigative authority transferred to the Secretary of Homeland
Security. See Executive Order 13286, Sec. 19, (Feb. 28, 2003), 68 FR
10623. Thus, as early as 1996, agencies were instructed to use
provisions within the FAR to support economical and efficient Federal
Government contracting by avoiding doing business with contractors that
employ unauthorized workers.
On June 6, 2008, President Bush issued Executive Order 13465,
amending Executive Order 12989 by adding an electronic employment
eligibility verification requirement to strengthen the long-standing
Executive branch policy of furthering economical and efficient
contracting through only contracting with Federal contractors who
employ persons in the United States who are authorized to work in the
United States. Executive Order 13465 echoes the findings and
conclusions stated in Executive Order 12989 and
[[Page 67654]]
builds upon the ``economy and efficiency'' justifications for the 1996
Executive Order in light of the significant advances in the technology
for employment eligibility verification that have been made since the
issuance of Executive Order 12989. As amended, Executive Order 12989
now states:
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. * * *
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 employment eligibility of
their workforce will promote economy and efficiency in Federal
procurement.
Executive Order 12989, as amended by Executive Order 13465, 73 FR
33285.
Executive Order 12989, as amended, further specifically directs the
agency heads of DoD, GSA and NASA to implement this policy through
amendments to the FAR. Executive Order 13465 at Section 3, 73 FR 33286.
Accordingly, the Councils amend the FAR in this final rule in
accordance with the President's direction, pursuant to his authority
under FPASA to ``prescribe policies and directives'' governing Federal
procurement that are consistent with the Act's aim of providing the
Federal Government with an economical and efficient procurement system.
40 U.S.C. 101, 121.
B. Final Rule
Summary of the Elements of the Proposed Rule That Are Retained in the
Final Rule
This final rule inserts a clause into Federal contracts committing
Government contractors to use the USCIS E-Verify System to verify that
all of the contractors' new hires, and all employees (existing and new)
directly performing work under Federal contracts, are authorized to
work in the United States. Consistent with the requirements first set
forth in the proposed rule, the final rule--
1. Exempts contracts that are for--
Commercially available off-the-shelf (COTS) items; and
Items that would be COTS items but for minor
modifications.
2. Requires inclusion of the clause in subcontracts over $3,000 for
services or for construction.
3. Requires contractors and subcontractors to use E-Verify to
confirm the employment eligibility of all existing employees who are
directly performing work under the covered contract.
4. Applies to solicitations issued and contracts awarded after the
effective date of the final rule in accordance with FAR 1.108(d). Under
the final rule, Departments and agencies should, in accordance with FAR
1.108(d)(3), amend--on a bilateral basis--existing indefinite-delivery/
indefinite-quantity contracts to include the clause for future orders
if the remaining period of performance extends at least six months
after the effective date of the final rule.
5. In exceptional circumstances, allows a head of the contracting
activity to waive the requirement to include the clause. This authority
is not delegable.
The rule is written to apply the above requirements in a manner
that will ensure effective compliance by the contractor community, and
is reasonably limited in certain circumstances to minimize the burden
on participants in the Federal procurement process.
Changes Adopted in the Final Rule
Below is a summary of changes made to the final rule:
1. Significantly Extended Timelines--The final rule amends the
proposed rule to permit Federal contractors participating in the E-
Verify program for the first time a longer period--90 calendar days
from enrollment instead of 30 days as initially proposed--to begin
using the system for new and existing employees. The final rule also
provides a longer period after this initial enrollment period--30
calendar days instead of 3 business days--for contractors to initiate
verification of existing employees who have not previously gone through
the E-Verify system when they are newly assigned to a covered Federal
contract. Contractors already enrolled and using the program as Federal
contractors will have the same extended timeframe to initiate
verification of employees assigned to the contract, but the time limits
will be measured from contract award date instead of from the
contractor's E-Verify enrollment date. With regard to verification of
new hires, a contractor that has already been enrolled as a Federal
contractor for 90 calendar days or more will have the standard 3
business days from the date of hire to initiate verification of new
hires. Those contractors that have been enrolled in the program for
less than 90 calendar days will have 90 calendar days from the date of
enrollment as a Federal contractor to initiate verification of new
hires.
2. Covered Prime Contract Value Threshold--The final rule requires
the insertion of the E-Verify clause for prime contracts above the
simplified acquisition threshold ($100,000) instead of the micro-
purchase threshold ($3,000).
3. Contract Term--The final rule clarifies that the E-Verify clause
need not be inserted into prime contracts with performance terms of
less than 120 days.
4. Institutions of Higher Education--The final rule modifies the
contract clause so that institutions of higher education need only
verify employees assigned to a covered Federal contract.
5. State and Local Governments and Federally Recognized Indian
Tribes--Similarly, under the final rule, State and local governments
and Federally recognized Indian tribes need only verify employees
assigned to a covered Federal contract.
6. Sureties--Under the final rule, sureties performing under a
takeover agreement entered into with a Federal agency pursuant to a
performance bond need only verify employees assigned to the covered
Federal contract.
7. Security Clearances and HSPD-12 credentials--The final rule
exempts employees who hold an active security clearance of
confidential, secret or top secret from verification requirements. The
rule also exempts employees for which background investigations have
been completed and credentials issued pursuant to the Homeland Security
Presidential Directive (HSPD)-12, ``Policy for a Common Identification
Standard for Federal Employees and Contractors,'' which the President
issued on August 27, 2004.
8. All Existing Employees Option--The final rule provides
contractors the option of verifying all employees of the contractor,
including any existing employees not currently assigned to a Government
contract. A contractor that chooses to exercise this option must notify
DHS and must initiate verifications for the contractor's entire
workforce within 180 days of such notice to DHS.
9. Expanded COTS-related exemptions for:
Bulk cargo--The rule will not apply to prime contracts for
agricultural products shipped as bulk cargo that would otherwise have
been categorized as COTS; and
Certain services associated with the provision of COTS
items or items that would be COTS items but for minor modifications.
10. Allows the Head of the Contracting Activity to waive E-Verify
requirements after contract award,
[[Page 67655]]
either temporarily or for the period of performance.
11. Definitions:
Employee assigned to the contract--The final rule
clarifies that employees who normally perform support work, such as
general company administration or indirect or overhead functions, and
that do not perform any substantial duties applicable to an individual
contract, are not considered to be directly performing work under the
contract.
Subcontract and subcontractor--Adds definitions derived
from FAR 44.101.
B. Response to Comments Received on the Notice of Proposed Rulemaking
Docket
The Department of Defense (DoD), General Services Administration
(GSA) and National Aeronautics and Space Administration (NASA)
published a notice of proposed rulemaking (NPRM) in this action on June
12, 2008. (See 73 FR 33374.) The NPRM directed the submission of
comments to the Federal eRulemaking portal, http://www.regulations.gov,
as well as by facsimile and by mail to the FAR Secretariat, with
reference to FAR Case 2007-013, Docket 2008-0001; Sequence 1, on or
before August 11, 2008. The agencies received more than 1,600 public
comments on the proposed rulemaking from individuals, organizations,
corporations, trade associations, chambers of commerce and Government
entities.
Comments submitted to the docket for this rulemaking were
distributed relatively evenly among various issues, with concerns about
the Government's authority to promulgate the rule and questions about
the DHS's and SSA's collective ability to administer the rule receiving
the greatest number of comments. Eleven commenters stated that the 60-
day public comment period was inadequate to evaluate, research, and
prepare responses to a complex proposed rule. Those commenters asked
the Councils to extend the comment period to allow more time to
research and respond to the proposed rule.
The Councils declined to extend the public comment period after
concluding that the period was adequate. The current web-based E-Verify
system, which has been active and available to employers since 2004,
has been the subject of significant public scrutiny, including in
public hearings before Congress. This has, over time, disseminated
considerable information about the program to the public. As a result,
most commenters did not request additional time to gather information
and submit comments, and those that did request additional time failed
to raise novel or difficult issues that could have justified an
extension. Moreover, the comments received more than adequately
provided substantial information on which the Councils could make a
final decision. Accordingly, the Councils do not believe that there is
a basis for extending the comment period related to this rule.
Support for the Rule
Comment: More than 600 commenters wrote in support of the proposed
rule and strongly urged its adoption. One commenter noted that it has
been illegal for more than 20 years, i.e., since 1986, to hire an
individual who is not authorized to work in the United States. Another
commenter, who identified himself as a 30-year Human Resources
professional, stated that this E-Verify system is not too burdensome
for employers. A third commenter said that the ``E-Verify program
WORKS!'' and that he has found it to work accurately 100 percent of the
time.
The majority of these commenters expressed overall support for the
Executive Order's instruction for Federal agencies to contract with
employers that use E-Verify to check the employment eligibility of all
persons performing work on Federal contracts and of all persons hired
by the contractor. Some commenters applauded E-Verify because it will
establish a level playing field and prevent some employers from
obtaining a competitive advantage by exploiting unauthorized workers
for lower pay. Many commenters noted that--for 22 years--it has been
against the law to hire workers who are not authorized to work in the
U.S. This is not a new requirement, they say; it merely puts some teeth
into the existing law. Other commenters observed that E-Verify will
help stem the problem of identity theft by requiring employers to check
photo identification.
Response: The Councils appreciate these supportive comments for use
of E-Verify in the Federal Government procurement system, but note that
application of the system in this context is not meant to regulate
immigration, but to provide the Federal Government with stable and
dependable contractors which, ultimately, results in a more economical
and efficient procurement system.
Requests for a More Comprehensive Solution
Comment: A number of commenters suggested that merely requiring the
use of the E-Verify system by Federal contractors was not a
comprehensive solution. They strongly advocate ``fixing'' the
``broken'' immigration system. Some commenters see the solution as
giving people a path to legal status, others see it as providing
``tangible solutions for the over 7 million undocumented workers in our
economy,'' some see it as enabling swifter and earlier access to work
permits, and still other commenters advocate improved ICE auditing
teams. One commenter claims that, ``[w]hile employer sanctions and a
mandatory employment document verification system may be an appropriate
part of an effective immigration reform package, standing alone they
only exacerbate the problems they are ostensibly designed to address.''
Response: Comprehensive immigration reform is beyond the scope of
this rulemaking and was not the purpose of Executive Order 12989, as
amended. The mandate given to the FAR Councils was to implement the
President's Executive Order of June 6, 2008, as a means of creating a
more economical and efficient Federal Government procurement system.
The employment of persons unauthorized to work in the U.S. has been
against the law for 22 years. Completion of the Form I-9 is still
required of all employers and this rule does not change that
requirement. This rule merely provides a more convenient, faster, and
more consistent means of determining whether an individual is, or is
not, authorized to work in the U.S. to establish greater stability and
dependability among the Federal contractor workforce.
Authority
1. Immigration Statutes
a. Voluntary Participation in E-Verify
1. Comment. Many commenters challenge the Councils' authority to
promulgate the Rule, arguing that the insertion of a clause into
Federal contracts that commits Federal contractors to use E-Verify
conflicts with the congressional intent expressed in the IIRIRA that
participation in E-Verify be ``voluntary.'' Some commenters further
argue that the E-Verify program is de facto mandatory because
contractors who elect not to enter into Federal contracts on account of
E-Verify will go out of business.
Response: The Councils disagree. Section 402(a) of IIRIRA states,
in relevant part, that ``the Secretary of Homeland Security may not
require any person or other entity to participate in a pilot program.''
8 U.S.C. 1324a note,
[[Page 67656]]
Section 402(a). On its face, this statutory limitation applies only to
the Secretary of Homeland Security and does not apply to the President
or the Councils. Because the requirement to insert the contract clause
set forth in this rule comes from a presidential action, Executive
Order 12989, as amended, and from this rulemaking undertaken by the
Councils, it is not a requirement imposed by the Secretary of Homeland
Security and therefore does not run afoul of section 402(a) of IIRIRA.
Moreover, acceptance of a Federal procurement contract is, by
definition, a voluntary act. The rule sets forth a performance
requirement to be included as a contract clause in contracts entered
into or negotiated anew after the effective date of the rule. In AFL-
CIO v. Kahn, the D.C. Circuit Court of Appeals, sitting en banc,
rejected the claim that the Carter Administration's insistence that
Federal contractors agree to comply with wage and price controls
rendered those controls ``mandatory'' in violation of the Council on
Wage and Price Stability Act (COWPSA). 618 F.2d 784 (D.C. Cir. 1979).
The Kahn Court analogized the procurement requirement at issue to
``those Federal programs that offer funds to State and local
governments on certain conditions. The Supreme Court has upheld such
conditional grants, observing on one occasion through Justice Cardozo
that `to hold that motive or temptation is equivalent to coercion is to
plunge the law in endless difficulties.' '' AFL-CIO v. Kahn, 618 F.2d
at 794 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 589-590
(1937)). According to the D.C. Circuit:
Any alleged mandatory character of the procurement program is
belied by the principle that no one has a right to a Government
contract. As the Supreme Court ruled in Perkins v. Lukens Steel Co.,
``[The] Government enjoys the unrestricted power * * * to determine
those with whom it will deal, and to fix the terms and conditions
upon which it will make needed purchases.'' Those wishing to do
business with the Government must meet the Government's terms;
others need not.
AFL-CIO v. Kahn, 618 F.2d at 794. If a contractor chooses to do
business with the Federal Government, then the Federal Government can,
and routinely does, impose contract performance requirements. Where, as
with this rule, such requirements are imposed through contract terms
included in contracts, a contractor's agreement to abide by those terms
of the agreement is not ``involuntary.''
2. Comment: Many commenters suggested that IIRIRA and the INA limit
the types of employers which can be required to participate in the
Basic Pilot Program. These commenters asserted that the proposed rule's
promulgation of a contract clause committing Federal contractors to use
E-Verify violates the congressional intent behind IIRIRA, because
Federal contractors are not one of the classes of employers which can
be required to participate in Basic Pilot. Some commenters suggested
that Congress consciously chose to exclude Government contractors from
the subset of employers for which participation in Basic Pilot would be
mandatory. Many commenters also asserted that, because of this alleged
violation of congressional intent, the Administration lacks the
constitutional authority to promulgate this policy through Executive
Order or through this rulemaking.
Response: The Councils disagree. IIRIRA requires participation in
E-Verify by certain employers, including Executive departments and the
legislative branch, as well as employers found to have violated INA
section 274A. There is nothing in the text of IIRIRA that prohibits the
President, acting pursuant to separate statutory authority, from
requiring additional classes of employers to participate in E-Verify as
a condition of contracting with the Federal Government. Nor is there
any indication in the legislative history to suggest that Congress ever
specifically considered and rejected a proposal to include Federal
contractors in the E-Verify program. Here, the President has acted
within his authority under FPASA and 3 U.S.C. 301 and issued an
Executive Order to improve the dependability and stability of the
Federal contractor workforce by requiring Federal agencies to contract
with businesses that electronically verify the employment eligibility
of their employees. In his Executive Order, the President tasked the
Secretary of Homeland Security with designating an appropriate
electronic verification tool and charged the FAR Councils with the
responsibility to promulgate a rule to implement the requirements of
the Executive Order. The Secretary of Homeland Security and the FAR
Councils have acted in accordance with the President's directive,
issued as an exercise of his authority under FPASA, and in so doing,
neither the Secretary nor the Councils have taken any action in
conflict with IIRIRA. Congress merely prohibited the Secretary of
Homeland Security from requiring participation in E-Verify by other
persons or entities, and this rule does not violate that prohibition,
as described above.
b. Existing Employees
Comment: Many commenters asserted that because IIRIRA created the
Basic Pilot program as a tool to confirm employment eligibility of
newly hired employees, the contractual requirement--announced by
Executive Order and implemented through this rulemaking--that existing
employees assigned to Government contracts be verified (or re-verified)
through E-Verify is contrary to law.
Response: The Councils disagree. Executive Order 12989, as amended,
instructs executive departments and agencies to require, as a condition
of contracting, that the contractor agree to use an electronic
employment eligibility verification system ``to verify the employment
of * * * all persons assigned by the contractor to perform work within
the United States on the Federal contract.'' This Executive Order is
based on the President's exercise of his authority under FPASA to
prescribe policies that promote economy and efficiency in federal
contracting. 40 U.S.C. 101, 121.
The Basic Pilot statute does not prohibit the verification of
existing employees' work eligibility called for by this presidential
directive. The Basic Pilot statute lays out a set of procedures that
employers using the system must follow ``in the case of the hiring (or
recruitment or referral) for employment in the United States. * * *''
IIRIRA section 403(a). The statute also sets out the parameters for the
``employment eligibility confirmation system'' that the Secretary of
Homeland Security must establish. IIRIRA section 404. Nothing in either
of these sections, however--or in any other part of the Basic Pilot
statute--prohibits the use of the confirmation system for existing
employees or prohibits the President, acting pursuant to separate
statutory authority, from requiring federal contractors to use the
confirmation system for existing employees as a condition of
contracting with the federal government.
c. Congressional Notification
Comment: Commenters noted that IRCA requires the Administration to
notify Congress before implementing any changes to the employment
verification system ``established under subsection (b) of [INA section
274A].'' INA section 274A(d)(1), (d)(3). These commenters suggest that
this rulemaking amounts to such a change, and that it may not be
implemented without notice to Congress called for in section
274A(d)(3).
[[Page 67657]]
Response: The Councils disagree. This rule instructs Federal
contracting officers to insert the specified clause into future Federal
contracts, thereby committing Federal contractors to use the E-Verify
system as specified in the rule. It does not, however, constitute a
change to ``the requirements of subsection (b)'' of INA section 274A,
which established the paper-based Form I-9 employment verification
process. The I-9 process that all employers must follow at the time of
hire continues to apply to Federal contractors without any change. This
rule, and the Executive Order on which it is based, promotes economy
and efficiency in Federal contracting by assisting employers to avoid
employment of unauthorized workers and by limiting the risk that
Federal contracts performed in the United States will be staffed by
persons unauthorized to work in the United States.
2. Executive Order Authority
Comment: As noted above, many commenters challenged the President's
authority to issue the Executive Order under FPASA. These commenters
suggested that Executive Order 12989 does not promote ``economy'' and
``efficiency'' in Government contracting, and that the Executive Order
is therefore not supported by FPASA's statement that the President may
enact procurement regulations which further those two ends. Commenters
also contended that the main purpose of the Executive Order is to
advance a social policy--a strengthening of the immigration enforcement
relating to employment in the United States--in a way that is contrary
to congressional intent, and that the President's power recognized by
FPASA cannot be employed by the Executive Branch to advance policies
that conflict with the statutes passed by Congress.
Response: These challenges to the legal authority for Executive
Order 12989 are outside the scope of this rulemaking. The Councils
note, however, that Executive Order 12989 falls well within the
established legal bounds of presidential directives regarding
procurement policy. FPASA authorizes the President to craft and
implement procurement policies that further the Act's statutory goals
of promoting ``economy'' and ``efficiency'' in Federal procurement.
See, e.g., UAW-Labor Employment & Training Corp. v. Chao, 325 F.3d 360,
366 (D.C. Cir. 2003) (affirming authority of the President under FPASA
to require federal contractors, as a condition of contracting, to post
notices informing workers of certain labor law rights); Kahn, 618 F.2d
at 792-793 (upholding an Executive Order implementing procurement wage
and price controls, noting need for a ``nexus'' between those wage and
price controls and procurement economy and efficiency). The fundamental
``economy and efficiency'' principles underlying the Executive Order
were first articulated in the original Executive Order 12989, issued in
February 1996, which concluded that contracting with employers who hire
unauthorized workers in violation of the INA undermines the economy and
efficiency of the Federal procurement system. The 1996 Executive Order
imposed debarment penalties on contractors found to have violated the
immigration laws, and was never found by a court to be inconsistent
with FPASA, the INA, or IRCA. Executive Order 13465 amends Executive
Order 12989 to use new employment verification technology in order to
advance the same goal of ensuring a stable and dependable Federal
contractor workforce and more economical and efficient Federal
Government contracting. See 73 FR 33285 (``This order is designed to
promote economy and efficiency in Federal Government procurement. * * *
I find * * * 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.'') The President has determined that
this rule will produce net economy and efficiency gains in Federal
procurement.
The Councils also disagree with assertions that the proposed rule
is a veiled attempt to modify immigration policy under the guise of
procurement regulation. This rule implicates immigration, but does so
in a permissible manner. The President may, under FPASA, promulgate
procurement policies and directives touching upon policy matters beyond
Government contracting, so long as there is a sufficiently close
``nexus'' between the policy or directive and the promotion of economy
and efficiency in Federal procurement. See Chao, 325 F.3d at 366-67;
Kahn, 618 F.2d at 792; Chamber of Commerce v. Reich, 74 F.3d 1322, 1337
(D.C. Cir. 1996) (``[T]he President, in implementing the Procurement
Act, may * * * draw upon * * * secondary policy views * * * that are
directed beyond the immediate quality and price of goods and services
purchased.''). In this case, the ``nexus'' is explained at some length
in the text of Executive Order 13465. (See 73 FR 33285.)
3. The MOU Requirement
Comment: One commenter specified that ``[t]he inclusion of an MOU
in addition to, or as a supplement to, the contract performance
requirements, is contrary to contract formation law in that it might
create a separately enforceable (and potentially conflicting)
obligation between the parties beyond the scope of the contract and
could create confusion and result in problems with contract
administration and/or lead to the submission of contract claims.''
Response: The Councils do not concur with these comments. The
requirement in this clause for the contractor to comply with the
requirements of a secondary agreement is no different than any other
contract term that requires adherence to a standard or a specification.
The clause merely requires adherence to the conditions of the MOU as
part of the contractor's performance duties. The terms of the E-Verify
MOU are readily available to the public, and were included in the
docket of this rulemaking on the www.regulations.gov Web site so that
commenters on this rule would have the opportunity to review and take
into consideration the proposed terms of that agreement in providing
comments on this rulemaking. Potential contractors have adequate
advance notice of the ancillary agreement with which they must comply.
4. Consistency With Other Federal Regulations
a. FAR Guiding Principles
Comment: Several commenters claim that the proposed rule
contradicts many of the guiding principles used in the creation of the
FAR, including (1) minimizing administrative operating costs, (2)
conducting business with integrity, fairness, and openness, and (3)
promoting competition.
Response: Commenters claim that administrative operating costs can
include start-up, implementation, training, and maintenance costs; and
the Councils agree. All of these costs were included, and evaluated, in
the Regulatory Impact Analysis (RIA) released with the proposed rule.
Some adjustments have been made to the RIA as a result of comments
received in response to the proposed rule, and they are addressed in
the Regulatory Flexibility Analysis section of this rule. Commenters
claim that there are also
[[Page 67658]]
other direct and indirect costs to employers who use E-Verify--
employers may perceive foreign-born workers as more expensive to employ
than native-born workers due to the database inaccuracies. Commenters
claim that resolving tentative nonconfirmations and correcting employee
records costs time and money and affects other resources. In claiming
that the costs associated with the proposed rule do not minimize
administrative costs, however, the commenters overlook the costs
already incurred by contractors as a result of the I-9 process mandated
by the INA, and they overlook the gains in stability and reliability of
the Federal contractor workforce that contractors' use of E-Verify will
produce.
The Councils also disagree with the claim by some commenters that
the proposed rule fails to advance integrity, fairness, and openness in
the way business is conducted. While Government-commissioned reports
have found some employer abuse of the program, discriminatory behavior
and other such prohibited employment practices is not encouraged by the
E-Verify system. Use of E-Verify cannot prevent all such illegal
action, but the record created by use of the system does make it more
difficult for an employer engaged in discrimination to conceal its
unlawful behavior. If any employer engages in discriminatory practices,
such abuses should be reported to the appropriate Federal and State
agencies responsible for enforcement of the anti-discrimination laws.
Commenters claim that the proposed rule does not encourage
competition because the harmful impact on small businesses (many of
which are minority-, immigrant-, or family-owned) is disproportionate
and makes the playing field for small businesses more uneven. The claim
of a disproportionate impact on small businesses is addressed elsewhere
in this rule (see the Regulatory Flexibility Analysis section of this
rule). However, the Councils believe that there is an impact on
competition, and it believes that the impact is positive rather than
negative. Use of the E-Verify system will make it more difficult for
firms to gain a competitive edge by hiring unauthorized workers at
lower pay.
b. DHS Regulations
Comment: One commenter asserted that the proposed rule's
requirement to re-verify certain employees violates existing DHS
regulations.
Response: As the commenter did not identify the specific DHS
regulations allegedly violated, this comment is not susceptible to a
response. Other commenters have made similar assertions that E-Verify
is contrary to law and the Councils have addressed these specific
concerns. The Councils are not aware of any DHS regulation violated by
this final rule.
c. Verification of Federal Employees
Comment: Several commenters noted that OMB has directed all Federal
departments and agencies to use E-Verify on their newly-hired
employees, but not on their existing employees. These commenters
asserted that the proposed rule is inconsistent with that OMB decision,
because the rule requires Federal contractors to use E-Verify on not
only new hires but also on existing employees working on Federal
contracts, and argue that Federal contractors should not be held to a
higher verification standard than is applied to the Executive branch.
Response: The Councils disagree. The rule is consistent with the
policy announced in Executive Order 12989 requiring the Executive
branch to contract with employers that agree to use E-Verify for their
employees who are working on a covered Federal contract. The aim of the
Executive Order is to promote economy and efficiency in Federal
procurement by ensuring stable and dependable Federal contractors.
Furthermore, Federal employees are required to undergo background
checks pursuant to HSPD-12, which mandates that a person must be
suitable (minimum of a national agency check with inquiries (NACI)) in
order to be issued an HSPD-12 card. HSPD-12 requires certain
credentialing standards prior to issuing personal identity verification
cards. These standards include verification of name, date of birth, and
social security number (among other data points) against Federal and
private data sources. The Councils agree that the degree of scrutiny
applied to individuals granted HSPD-12 credentials provides sufficient
confidence that any such person is likely truthful about his or her
authorization to work in the United States that additional
investigation through E-Verify is not necessary.
d. Appropriate Scope of Regulations
Comment: One commenter suggested that the proposed rule's goal was
to ``protect U.S. workers''--one that is beyond the scope of that which
can rightfully be pursued under procurement authorities.
Response: The Councils do not agree with the premise of this
comment. The goal of the proposed rule is not to ``protect U.S.
workers.'' Rather, the goal of the rule is to implement Executive Order
12989, which aims to promote economy and efficiency in the Federal
procurement system by ensuring that the Federal Government does not do
business with contractors that hire or employ unauthorized aliens,
thereby promoting the stability and dependability of contractor
workforces and minimizing the potential for disruption to federal
contracts. The President is well within his authority under FPASA to
require the agencies to promulgate this rule, which has a clear nexus
to promotion of economy and efficiency in Federal contracting, even if
it might also have other impacts. Chao, 325 F.3d at 366 (affirming
authority of the President under FPASA to require federal contractors,
as a condition of contracting, to post notices informing workers of
certain labor law rights.)
Relationship With States
1. States Prohibiting Mandatory Use
Comment: Several commenters requested that the Administration
clarify the effects of the proposed rule on employers conducting
Federal Government contracting business in locations where State and/or
local law prohibits the use of E-Verify. One of these commenters
specifically asked if the requirements of the proposed rule would
function as an affirmative defense in actions brought against employers
which use E-Verify in contravention of State/local law. Two other
commenters suggested that the proposed rule be modified to provide E-
Verify participation waivers to employers located in States prohibiting
E-Verify enrollment, to allow such employers to participate in
Government contracting without violating State law.
Response: The Councils decline to provide an exemption to the E-
Verify term in contracts covered by this rule for employers located in
States that prohibit E-Verify enrollment, because such state and local
laws would be preempted by Executive Order 12989, as amended, and by
these rules implementing the Order. The Councils note that an Illinois
state statute prohibiting use of E-Verify by employers within that
state is currently in litigation, as a result of a lawsuit filed by DHS
arguing that the state statute is preempted by Federal law. The state
has agreed not to enforce its statute pending the final resolution of
the litigation.
2. Other States
Comment: Two commenters noted that they are concerned that the
proposed rule's requirement that certain existing employees undergo E-
Verify
[[Page 67659]]
verification could ``embolden'' States and localities to require the
same type of verification for employees working under State/local
contracts. These commenters fear that such an expansion would
complicate employment verification legal requirements, to the detriment
of both employers and employees.
Response: The commenters concerns are speculative and, in any case,
State and local government action is outside the scope of this case.
E-Verify System
1. E-Verify Procedural Issues
a. Burdensome
Comment: One commenter stated that the E-Verify enrollment process
is cumbersome and difficult and that USCIS support for employers trying
to enroll has been inconsistent and ineffective. Three commenters felt
that tentative nonconfirmations and the subsequent efforts to resolve
them place additional burdens on employers and employees alike. Two
other commenters state that costs associated with E-Verify are
burdensome to employers. One commenter considered that the vast scope
of coverage in the proposed rule is contrary to the ``economy and
efficiency'' argument that justified issuance of the rule, as compared
to other labor requirements attached to procurement.
Response: The Councils have narrowed the coverage to the extent
possible yet still meeting the purpose of the Executive Order. The
Councils are not charged with administration of the E-Verify program
and this process is not within its rulemaking authority or the scope of
this final rule. The Councils have considered the burdens and costs
associated with E-Verify in the RIA and Regulatory Flexibility
Analysis.
The E-Verify registration process is an automated process that uses
a registration wizard to assist employers in determining which access
method will best suit their company needs. Once that is decided, the
individual registering the company is required to enter the company
contact information, including the number of company locations for
which E-Verify will be used and the address of these locations. Within
24 hours, that individual will receive an email from E-Verify that
includes their username and password which they will use to log on to
the system. In mid-FY08, the E-Verify program launched a registration
reengineering effort aimed to streamline the E-Verify registration
process and shift to a profile based registration system. The program
has been working with various stakeholders to determine and address the
biggest concerns with the process, and hopes to conduct focus groups on
ideas for improvement. The program has also undertaken a Plain Language
Initiative, designed to simplify the language associated with the
program and to update the materials associated with the program once
the new verbiage has been finalized. Within this effort, the program
also intends to conduct focus groups to determine the best response to
various word choices.
With regard to the burdens or costs to employers to register and
participate in E-Verify, DHS has informed the Councils of a report
entitled the ``Findings of the Web Basic Pilot Evaluation'' that was
prepared by Westat in September 2007. The report may be found at http:/
/www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf. The report
found that 96 percent of long-term users indicated that E-Verify was
not burdensome. The Westat report also stated that approximately 97
percent of long-term users reported that the indirect set-up and system
maintenance costs were either no burden or only a slight burden and
that the majority of employers reported that they spent $100 or less in
initial set-up costs. The Councils recognize that costs to employers
will vary depending on employer characteristics and practices.
b. Data Accuracy
Comment: Numerous commenters focused their concerns primarily on
the reliance of the E-Verify system on DHS and SSA databases that
contain high percentages of errors. Many commenters, in particular,
specifically call out the reported 4.1 percent error rate of the Social
Security Administration's database as a large source of inaccurate
data. Several commenters stated concern that DHS databases are not
updated in real-time.
Many commenters also believe the inaccurate data in the database
leads to the misidentification of workers and to denial of employment
for work-authorized individuals, especially naturalized citizens and
foreign-born authorized workers. Many commenters stated concerns that
naturalized citizens or foreign-born authorized workers are
considerably more likely to receive erroneous tentative
nonconfirmations than native-born U.S. citizens. One commenter
questions the 0.5 percent ``error rate'' claimed by E-Verify when the
system is based on SSA databases with a 4 to 5 percent error rate.
One commenter feels data entry or ``human'' errors on the part of
employers are of concern as well since they cannot be completely
eliminated. Many commenters feel this issue especially affects
employees with nontraditional or complex names.
Response: The improvements made to E-Verify over the last few years
have decreased the incidence of data mismatches, which is referred to
as a ``tentative nonconfirmation'' in the E-Verify program, and often
referred to as the ``error rate'' by the public. DHS and SSA continue
to analyze and implement improvements to reduce data mismatches as part
of ongoing management of the E-Verify program. The majority of
mismatches are with SSA data, since the SSA database is the only source
for citizen data, against which the large majority of E-Verify queries
are run. Instances of data inaccuracies include name changes due to
marriage or divorce not reported to SSA, or, in the case of naturalized
U.S. citizens, unreported changes in citizenship status. Most
citizenship status mismatches that resolve as ``work authorized'' do
involve naturalized citizens who have failed to notify SSA of their
change in citizenship status. To reduce the number of SSA mismatches
due to this situation, USCIS developed an automated check against the
USCIS naturalization database for U.S. citizen new hires and provided
employees who receive an SSA citizenship status mismatch notice the
option of calling DHS directly to resolve it rather than resolving the
mismatch with an in-person visit to an SSA field office. This has
significantly reduced the burden of resolving tentative
nonconfirmations for naturalized citizens. The changes went into effect
in May 2008, and preliminary data show a 30 percent decrease in the
number of SSA tentative nonconfirmation for naturalized citizens.
It is important to clarify that if the E-Verify program issues an
initial mismatch to an employee, the employer cannot fire, prevent from
working, or withhold or delay training or wages for that employee
during the mismatch process. All employees receiving an initial
mismatch are given the opportunity to contest to ensure that every
employee who has a work authorized status is not prevented from
working. All employees must be given the opportunity to contest and
correct their records.
The Government recognizes the concerns over the SSA Office of the
Inspector General Congressional Response Report (2006) estimates that
4.1 percent of their NUMIDENT database may contain discrepancies that
could potentially affect 12.7 million individuals. The E-Verify
program,
[[Page 67660]]
however, provides due process for correcting any errors with SSA, which
will help to reduce the NUMIDENT discrepancies over time and provides
an opportunity for an individual to correct an error they may not have
been aware of otherwise. The E-Verify MOU makes clear that employers
are prohibited from discharging, refusing to hire, or assigning or
refusing to assign to federal contracts employees because they appear
or sound ``foreign'' or have received tentative nonconfirmations. If an
employee elects to challenge a tentative nonconfirmation, the employee
may not be terminated or suffer any adverse employment consequences
based upon the employee's perceived employment eligibility status
(including denying, reducing, or extending work hours, delaying or
preventing training, requiring an employee to work in poorer
conditions, refusing to assign the employee to a Federal contract or
other assignment, or otherwise subjecting an employee to any assumption
that he or she is unauthorized to work) until and unless secondary
verification by SSA or DHS has been completed and a final
nonconfirmation has been issued. Employers are further notified that
any violation of the unfair immigration-related employment practices
provisions in section 274B of the INA could subject the Employer to
civil penalties, back pay awards, and other sanctions, and violations
of Title VII could subject the Employer to back pay awards,
compensatory and punitive damages. Moreover, the MOU states that
violations of either section 274B of the INA or Title VII may also lead
to the termination of its participation in E-Verify. If the Employer
has any questions relating to the anti-discrimination provision, it may
contact the Department of Justice's Office of Special Counsel for
Immigration-Related Unfair Employment Practices (OSC) at 1-800-255-8155
or 1-800-237-2515 (TDD).
The ability to identify and fix any errors will help them maintain
accurate records with SSA, which is beneficial to them in the future,
particularly when applying for SSA benefits. The report also indicates
that the majority of the discrepancies (64 percent) in the Numident are
in the ``Death Indication'' field, which would not affect new hires.
However, the E-Verify program can detect instances in which an
individual is fraudulently using the SSN of a deceased person to gain
unauthorized employment.
In response to data entry error, the independent report by Westat
does state that employee and employer data entry errors cannot be
completely eliminated but the E-Verify program has worked to minimize
and catch those errors before verification query results are returned.
In September 2008 E-Verify instituted a pre-mismatch typographical
error check that asks the employers to double-check the information
they entered into the system with the employee's documents in the case
of a mismatch. Preliminary data show that this enhancement has reduced
SSA mismatches by 30 percent. In response to the issue of employees
with nontraditional or complex names, the system provides guidance to
employers on the system page where the name is entered into the field.
There is a box that appears when an employer scrolls over the name
field and there is also a help button next to the field that opens up a
document that provides detailed guidance on how to enter complex
surnames such as multiple last names or hyphenated names.
c. Technology Issues
Comment: Many commenters stated that the E-Verify system remains a
paper-based system which still requires a contractor to complete the
paper Form I-9 after analyzing up to 25 different documents that an
employee could present and is not an entirely electronic system. One
commenter stated that the system should provide an electronic export or
reporting functionality for Case Verification Numbers. They state that
the transfer of the verification case number to paper or on-line I-9
forms is now a manual, case-by-case ``pen and paper process'' that
would fail under high volume. Another commenter stated concern over the
degree of knowledge the personnel managing the toll free E-Verify phone
number has on the myriad of complex immigration documentation and state
that the USCIS National Customer Service (NCS) lines have been unable
to provide accurate and timely information which can lead to confusion,
multiple calls, and case resolution delay.
Response: Completion of the Form I-9 is required regardless of
whether an employer is a participant in E-Verify. DHS rules permit the
completion and storage of the I-9 electronically rather than on paper.
See e.g., 8 CFR 274a.2(a)(2). E-Verify provides Form I-9 support
materials for employers on the system's website including the Form I-9,
in English and Spanish, and the Handbook for Employers, Instructions
for Completing the Form I-9 (M-274), as well as many immigration-
related materials such as a Guide to Selected Travel Documents. The
Councils and DHS recognize the preference some employers have to
utilize electronic sources for required paperwork, and DHS is
continually working towards more paperless systems, but is still within
that process.
With respect to telephone inquiries, the E-Verify program has a
Tier system when addressing phone calls. While most calls go directly
to the first level, Tier One, for general program information or
employer questions, there is a system in place to escalate calls to
other Tiers depending on the complexity of the case. The program has
subject matter experts on staff to address phone calls that require
further attention. For cases that they are unable to resolve, USCIS has
a Special Case Resolution unit in the Washington, DC Headquarters
office that the cases can be referred to for further review. The
average wait time is less than 20 seconds for a phone call to transfer
from Tier 1 to Tier 2 and calls to the program are currently answered
within 0.2 minutes or 12 seconds on average. The E-Verify program has
substantially increased its customer service and program staff over the
past two years in an effort to work with employers and ensure that
every question or difficulty that arises is addressed.
In any specific case where additional time may be needed to address
an issue or research the case information before a verification query
can be resolved, it is important to note that the employer would
receive a ``case in continuance'' response and cannot take any adverse
action on an employee during this time.
DHS and SSA are constantly exploring ways to make the system more
efficient and effective. However, the suggestion made here, that the
system can be made totally web based so that individuals receiving a
tentative nonconfirmation could prove that some factor generating the
nonconfirmation was in error, is unrealistic. Generally, SSA requires
documented proof of the factors that might be in question, SSN, date of
birth, name, citizenship; and that the documents used be originals. The
documents used to prove these elements (driver's licenses, birth
certificates, etc.) are subject to forgeries, which are much easier to
detect when a human being inspects original documents. Use of
photocopies or fax copies, which would be necessitated by a totally Web
based process, would make the process much more susceptible to fraud.
If an employee believes that s/he has been discriminated against
during the employment eligibility verification process, he or she
should contact OSC at 1-800-255-7688 or 1-800-237-2515 (TDD). Employers
that have questions relating to the anti-discrimination
[[Page 67661]]
provision should contact OSC at 1-800-255-8155 or 1-800-237-2515 (TDD).
d. Photo Identification
Comment: Many commenters stated that there is an estimated 11
percent of the population that does not have a Government-issued photo
identification. Some of those same commenters also stated that studies
have indicated members of minority populations such as African
Americans, Latinos, Women, and Senior Citizens are less likely to have
photo identification as well as many lawfully present immigrants such
as refugees and asylees. These commenters also state that there are
situations where an individual may have the right to work but has not
yet received a physical Employment Authorization Document (EAD) and
that the proposed rule fails to make exceptions for cases where photo
identification has been lost or destroyed due to crime, accidents,
natural disasters, or other causes.
Response: The Councils recognize the concerns of the commenters in
regard to the percentage of the U.S. population that do not have photo
identification, but note that there is no evidence from the extensive
operations of the E-Verify program to date that this has been a
significant problem. There are also cases and studies that find a far
lower percentage of individuals lack a photo identification, at least
in the context of evaluating photo identification requirements for
voting. See Indiana Democratic Party v. Rokita, 458 F.Supp.2d 775, 803
(S.D. Ind. 2007), aff'd sub nom. Crawford v. Marion County Election
Bd., 472 F.3d 949 (7th Cir. 2007), aff'd, 128 S.Ct. 1610, 553 U.S. ---
(2008); see also Voter IDs Are Not the Problem: A Survey of Three
States, American University Center for Democracy and Election
Management, January 9, 2008, found at http://www.american.edu/ia/cdem/
pdfs/VoterIDFinalReport1-9-08.pdf (finding that 1.2% of registered
voters lacked a government issue photo identification). Photographs
serve a unique and essential function and significantly minimize the
opportunities for document fraud, unlike fingerprints, by allowing a
contractor to immediately compare the picture embedded in the document
against the employee. IIRIRA Sec. 403(a)(2)(A)(ii), 8 U.S.C. 1324a
note, thus requires photo identification from employees of employers
participating in the E-Verify program. In order to be consistent with
these standards, the E-Verify MOU requires all employees of Federal
contractors participating in E-Verify to present a photographic
identification document.
Moreover, the documentation requirement is a basic requirement for
the I-9 process that has to be completed regardless whether or not the
employer is in E-Verify. The E-Verify photo identification requirement
does limit the scope of acceptable ``List B'' identification documents
somewhat, but we are not aware of a basis to conclude that the non-
photo identity documentation that is currently permitted for the I-9 is
broadly available to, or used by the referenced populations. In other
words, the effect of limiting the non-photo documents would appear to
be marginal.
USCIS has taken substantial steps to expedite EAD issuance,
especially for refugees and asylees. The non-photo List B documents are
not normally available to aliens who need EADs in any case. Those that
reasonably might be available, especially the driver's license, contain
photographs and thus are acceptable for E-Verify. Thus, this is not
really an E-Verify issue per se; rather, it is a general issue about
the I-9 compliance that employers are responsible for whether or not
they participate in E-Verify.
To address situations of lost or stolen documents, the DHS
regulations permit temporary presentation of a receipt for the
application for a replacement document, and this is permissible for E-
Verify employers as well as those just using the paper I-9.
For the six commenters who assert that employees need to show an
EAD, the Councils note that there is no requirement to states that if
an employee has an EAD card they must provide it for purposes of the
Form I-9. Employees may choose to provide any approved List B document
with a photo for the purpose of verification through E-Verify. It is
true that many aliens who apply for an EAD card would not normally have
List C evidence of work authorization and thus cannot comply with Form
I-9 requirements until they receive the EAD. But this is a concern
generally applicable to Form I-9 compliance and E-Verify participation
would not affect it one way or another.
e. SSN Number
Comment: One commenter noted that the SSN is not required for the
Form I-9.
Response: The Form I-9 (Rev. 06/05/07) states ``[p]roviding the
Social Security number is voluntary, except for employees hired by
employers participating in the USCIS Electronic Employment Eligibility
Verification Program (E-Verify).'' Additionally, providing an SSN to
employers is generally necessary to comply with the IRS statutes and
regulations that already require every employee in the United States to
have an SSN.
f. Privacy
i. System Security
Comment: Several commenters suggested that E-Verify has ongoing
system security problems that jeopardize the privacy and security of
individuals' personal information. These comments focused on (1)
general concerns with DHS, and more generally the U.S. Government, in
the handling of personal information, and (2) general concerns about
the potential for cyber attacks.
Response: The Councils disagree with these comments. Any database
of personal information would be attractive to hackers or cyber
attacks. That is why USCIS has developed a robust security program to
protect the Verification Information System (VIS), the technical system
that supports the E-Verify program, from such attacks. This security
program fully complies with Federal Information Security Management Act
(FISMA) requirements and has been certified and accredited as secure.
The security measures in place include among other things both strong
and limited access controls, transmission encryption, and extensive
audit logging. Accordingly, the Councils have no reason to believe that
these systems are not secure enough to ensure the effectiveness of the
rule.
ii. Privacy Protections
Comment: A number of comments stated that E-Verify does not
adequately protect the privacy of individuals' personal information.
These comments focused on (1) general concerns with E-Verify handling
of personal information, (2) specific concerns about potential for
employer misuse of E-Verify for pre-screening and other misuse, (3)
specific concerns about the potential for misuse of E-Verify by those
falsely claiming to be employers, and (4) specific concerns with E-
Verify relying on external databases.
Response: The Councils disagree in part with these comments.
Several comments addressed non-specific privacy concerns about the
handling of personal information. USCIS fully appreciates the
significant responsibilities of handling this large amount of personal
information. DHS, and specifically the E-Verify program, has developed
a robust privacy program to not only ensure that the privacy of this
information is respected but also to ensure that the public is made
aware of
[[Page 67662]]
how their information is being treated. There is a dedicated staff of
privacy professionals who work at the operational, tactical, and
strategic planning levels and every significant change to E-Verify is
documented in a system of records notice (SORN) or privacy impact
assessment, as appropriate. USCIS continuously seeks to improve
security and privacy protections as the E-Verify program develops.
Several commenters noted that E-Verify could be misused by
employers, either by pre-screening applicants or by treating
differently employees who have received a tentative nonconfirmation.
The Westat report suggests that this indeed does take place.
Unfortunately, some employers do not follow the requirements and
guidelines for participating in E-Verify. Those requirements and
guidelines address these concerns in several ways. First, E-Verify is
educating employees and job applicants about how E-Verify should work
and what their options are to address perceived misuse or abuses of the
program. To this end, the E-Verify MOU requires that E-Verify
informational posters be placed in the work site where employees can
see them. These posters provide employees with a concise statement of
their rights and contact information for submitting complaints
regarding misuse and abuse of the program. In addition, E-Verify
conducts outreach to educate employers and the general public about the
program. Moreover, E-Verify requires user training and testing in
addition to providing users with guidance on the appropriate use of the
E-Verify program. Finally, USCIS has developed a monitoring and
compliance capability to assist in identifying when an employer may be
misusing the E-Verify program.
Several commenters noted that E-Verify does not currently screen
employers who register with E-Verify, therefore it is possible that
some may not be actual employers, but rather groups or individuals
seeking to ``phish'' E-Verify to validate personal information for
identity theft purposes. E-Verify does capture information on employers
and, as part of the program's monitoring and compliance activities,
researches on an ad hoc basis whether E-Verify users are actually
employers. E-Verify has sought authority to verify employer
authenticity directly from other Government sources but has not, as of
yet, received that authority. Last year, in particular, the
Administration sought a statutory change to the current prohibition on
Internal Revenue Service sharing of Employer Identification Number data
with other Government agencies, such as USCIS. In advance of such a
statutory change to that prohibition, USCIS is currently undertaking a
robust reengineering of the employer registration process, including
exploring ways of verifying the authenticity of employers registering
for E-Verify.
Finally, commenters noted that E-Verify relies to a large extent on
databases external to DHS. The commenters questioned the integrity of
the data in these external databases and specifically recommended that
they be made to provide full Privacy Act protections without being
exempt from any of the Privacy Act requirements. The SORN and privacy
impact assessments for VIS, the underlying E-Verify system, can be
found at the DHS Privacy Office Web site http://www.dhs.gov/privacy.
The SORN and privacy impact assessments describe more fully what
information is collected and how it is used, protected, and shared. The
particular Privacy Act exemptions and the extent to which the external
source systems apply the Privacy Act vary based on the type of system
and reason for collection. USCIS has asserted no Privacy Act exemptions
and fully embraces the Privacy Act protections for the E-Verify VIS. E-
Verify fully appreciates that because it is making such significant
decisions based on information over which it does not have direct
authority, it must be very careful to ensure that these decisions are
made as accurately as possible. E-Verify will often check more than one
database for verification of a single data element acknowledging that
data may occasionally be wrong. In any event, individual employees are
not deemed unauthorized to work as long as they are contesting a
tentative nonconfirmation from E-Verify.
iii. Identity Theft
1. Comment: Several commenters addressed E-Verify's current ability
to combat identity theft. One commenter stated that there is no
rational relationship between the E-Verify mandate on Federal
contractors and the aim of having more efficient and dependable
procurement sources because E-Verify does not prevent identity theft.
The same commenter also stated a concern that the use of E-Verify would
encourage identity theft. Another commenter stated that E-Verify could
not prevent the hiring of unscrupulous workers because it does not
check identity. A third commenter stated that E-Verify is inadequate
because it does not prevent identity theft.
Response: The Councils disagree. E-Verify has had remarkable
success preventing those from maintaining employment who are not
authorized to work in the United States. When Congress established E-
Verify, one of its goals was to prevent employment of those who are not
authorized to work by detecting document fraud during the hiring
process. Information matching and the photo identification requirement,
while not airtight, are parts of this process. When an individual has
presented fraudulent documents to an employer, the E-Verify program is
more likely to identify that fact than the paper I-9 process and, is
thus an improved process in relation to document fraud.
Criticism has arisen from E-Verify's limited ability to detect
identity theft, i.e., when legitimate documents are presented but have
been stolen from another individual. A concern also has been stated
that identity theft may increase as more employers use the E-Verify
program. The Councils note that E-Verify was not established to prevent
identity theft, but increasingly has the effect of doing so.
First, while document fraud requires some level of ingenuity,
identity theft requires far more ingenuity. E-Verify continually forces
unauthorized workers to resort to more and more difficult methods to
obtain unauthorized employment. USCIS anticipates that this increased
burden and the increased danger of involvement in identity theft
criminality causes a significant number of unauthorized workers not to
seek employment with employers who use E-Verify.
Second, E-Verify introduced a photo screening capability (``photo
tool'') into the verification process in September 2007. When an
employer is presented with an employment authorization card or
permanent residence card during the Form I-9 documentation process, the
employer can match the photo on the documents to the photo which
appears on the computer screen during the E-Verify process because the
two should be the identical photo. Fifteen million photographs are
contained within the USCIS databases. This has led to instances where
employees who have either used photo substituted documents or have
created entirely counterfeit documents have been identified. USCIS is
currently in discussions with the Department of State to add United
States passport and visa photographs to the E-Verify process as well.
It is USCIS's long-term goal that the E-Verify photo screening process
will be able to verify photos on all identity documents that an
employee may present during the Form I-9
[[Page 67663]]
process. The photo tool has identified numerous cases of document and
identity fraud and prevented unauthorized workers from gaining
employment. Accordingly, the Councils consider the E-Verify process
superior to the current I-9 process for identifying and deterring
document fraud and identity theft.
2. Comment: Many commenters stated a concern that E-Verify's
inability to prevent identity theft leaves employers that use E-Verify
vulnerable to sanctions. Additionally, many commenters stated that the
threat of penalties resulting from the use of E-Verify or pressure to
comply with the system would encourage employers to forego hiring
certain workers.
Response: The Councils disagree with these comments. As explained
above, the E-Verify system makes an employer more, not less, able to
prevent document fraud and identity theft. If a Federal contractor
participating in the program obtains confirmation of identity and
employment eligibility in compliance with the terms and conditions of
the program the contractor will have the benefit of establishing a
rebuttable presumption that the contractor has not violated INA
274A(a)(1)(A) with respect to the hiring. See 8 U.S.C. 1324a, note,
Sec. 402(b). Moreover, no Federal contractor participating in the E-
Verify program can be held civilly or criminally liable under any law
for any action taken in good faith reliance on information provided
through the E-Verify system. Id. at 403(d). USCIS and ICE may also use
law enforcement discretion in relation to specific instances of good
faith operation of the program. Accordingly, the Councils do not view
the stated concern over employer sanctions resulting from identity
theft as an impediment to implementing this final rule.
With respect to the comments regarding selective hiring, an
evaluation of the E-Verify program, publicly available on the Internet
at http://www.dhs.gov/E-Verify under ``Program Highlights''/``Findings
of the Web-Based Basic Pilot [E-Verify] Evaluation--September 2007,''
included an analysis of employer's confidence in hiring certain workers
with information collected directly from E-Verify employers. Most
employers who use E-Verify stated that they are neither more nor less
willing to hire immigrants. When use of the program was reported as
impacting employer hiring practices, employers almost always stated
that the provision of an additional means to determine work
authorization through E-Verify resulted in increased confidence and
security in the employee's work status and therefore, made the employer
more likely to hire immigrants.
3. Comment: One commenter stated that DHS needs to reduce the
number of documents acceptable to prove authorization to work to reduce
identity theft and confusion. The same commenter also stated that E-
Verify does not have the ability to determine if an SSN is being run
through its system multiple times.
Response: The number of documents acceptable for demonstrating
authorization to work is governed by the INA and by the regulations on
the Form I-9. The E-Verify program requires documents with a photograph
when the employee presents a ``List B'' document for Form I-9 purposes.
See 8 U.S.C. 1324a note, Sec. 403(a)(2)(A)(ii). The requested change to
further restrict the documents that may be used for the Form I-9 or for
E-Verify would be better directed to DHS than to the Councils, and is
outside of the scope of this rulemaking.
E-Verify is fully capable of detecting multiple uses of SSNs.
Through the USCIS Monitoring and Compliance unit, steps are taken to
identify those instances where suspected fraud has occurred and
corrective action is taken where appropriate. Additional methods to
combat identity theft, including methods to determine if a single SSN
is being used in different geographic locations, are under
investigation with a focus on suspected or clearly identified
fraudulent use of SSNs, based on the number of times and geographic
areas in which a number has been used. The Councils note that an
employee could have more than one job, in different locations.
g. Communications
Comment: A professional association commented that certain
materials should be made available prior to enrollment (e.g., user
manual) and that E-Verify should create a list of items for employers.
Response: Currently, E-Verify does provide many materials on the
program's Web site at http://www.dhs.gov/E-Verify including the E-
Verify Users Manual, a ``How Do I Use E-Verify'' guide, and a copy of
the E-Verify MOU among other informational materials. E-Verify
continues to engage in employer outreach to further educate employers
regarding their responsibilities under the program.
2. User Liaison Organizations and Other Assistance to Contractors
Comment: One industry association requested establishment of a user
liaison organization to solicit, assess, and prioritize with the user
community implementation of needed system enhancements and corrective
actions.
A university requested establishment of an E-Verify Ombudsman to
assist with the expected higher than average error rates for foreign
nationals on college and university campuses.
Another university commented that DHS should provide Federal
funding assistance to employers for initial setup of record retention
capabilities and staff training and initial and ongoing verification of
expenses.
Response: DHS has informed the Councils that it is continually
looking at ways to improve the E-Verify system, and believes that
support is already provided to employers in a consistent and effective
way. E-Verify provides general assistance through information found on
the Web site and trained staff to address questions before or during
the registration process in addition to continued support after an
employer registers as an E-Verify participant. The MOU provides points
of contact. The program also goes beyond this general support to
provide presentations and system demonstrations to individuals or
groups such as employers, Federal, State and local governments,
community-based organizations, and various industry associations. The
E-Verify program has participated in outreach events designed to
provide information to the public and interested stakeholders regarding
the program. The program conducts demonstrations, participates in
conferences and outreach events, hosts webinars for interested parties,
and created public awareness campaigns nationally and on the web and on
radio, print and billboard in the states of Arizona, Georgia,
Mississippi, and the metro Washington, DC area. The E-Verify Outreach
branch has coordinated closely with the Small Business Association
since April 2008 to conduct outreach events to ensure specific concerns
relating to small businesses are heard and addressed.
With regard to the request for financial assistance, the Westat
evaluation reports that the majority of employers reported that they
spent $100 or less for initial setup costs for E-Verify and a similar
amount annually for operating the system. There is no additional record
retention beyond Form I-9 requirements, with the exception of those
employers who are presented with green cards (I-551s) or EADs (I-767)
and need to retain photocopies of these documents for the photo tool as
long as they are retaining the Form I-9.
[[Page 67664]]
3. Staffing
a. SSA and DHS Staffing for E-Verify
Comment: Many commenters raised various concerns over the
overburdening of both SSA and DHS if E-Verify is expanded. Many
commenters commented that the rule would overwhelm DHS and SSA as
neither organization is adequately staffed to deal with the increased
number of tentative nonconfirmations expected. Some of these commenters
wrote that there is a substantial difference between the current number
of E-Verify employers and the number of E-Verify employers that would
use the system as a result of the rule. Those commenters were concerned
with the scalability of staff to handle the increased number of
employers.
Response: The Councils disagree with these comments. DHS (and its
predecessor agencies) and SSA have worked closely for more than a
decade to improve the E-Verify process. Since SSA does not receive
appropriated funding for E-Verify, it is reimbursed by DHS for labor
costs associated with resolving mismatches with SSA field offices.
These costs include salaries and overhead for SSA field office
employees who resolve mismatches in the field, and salaries and
overhead for SSA employees who staff the SSA 1-800 number to answer
calls from employees and employers. DHS has worked hard to decrease E-
Verify related work undertaken by SSA field offices.
In May 2008, the E-Verify program launched the inclusion of
naturalized citizen data as part of the initial E-Verify check. E-
Verify now automatically performs an initial query to check information
against the USCIS naturalization databases for all U.S. citizen new
hires. In the short time since this new routine was put into place, E-
Verify tentative nonconfirmations for naturalized citizens have
decreased by 30 percent. In the event a naturalized citizen receives a
SSA tentative nonconfirmation due to citizenship status, that
individual now also has the option of calling DHS to reconcile the
citizenship status mismatch rather than physically visiting SSA. DHS's
efforts in this area will further reduce the number of E-Verify
mismatches for naturalized citizens, thus reducing the instances of
``walk-ins'' to SSA offices for naturalized citizens.
Many commenters in addressing this issue did so in terms of a
nationwide mandatory expansion of E-Verify to all employers and cited
statistics that would apply to such an expansion. It is likely that SSA
would need to increase its own workforce to meet the demands of a
nationwide mandatory system that would be used by approximately 7
million employers. However, the SSA reports that the numbers of
employers and the workloads associated with this FAR rule would be far
less than they would be under a nationwide mandatory system. This is
especially true given the recent improvements made to the E-Verify
system and the effect those have had in reducing the numbers of people
contacting SSA.
b. Effect on Other Agency Functions
Comment: Some commenters were specifically concerned with the
effect that the rule would have on SSA's ability to fulfill its primary
mission of administering benefits.
Response: Since E-Verify uses a system separate from other SSA
verification services, increases in E-Verify queries would have no
effect on disability claims. As stated above, SSA and DHS are
sufficiently staffed to handle E-Verify, therefore there should be no
adverse impact on carrying out any of the other core functions of these
agencies.
4. System Technology Issues
Comment: Many commenters suggested that the E-Verify program would
be unable to handle the increased strain on its system, and
specifically on the transactional database. Several of those commenters
stated that the requirement to check all new hires will overwhelm the
current system and lead to an increase in workforce disruption. Several
other commenters argue that E-Verify is ill-equipped to handle a vast
increase in users, queries, transactions, and communications volumes.
Some commenters suggested that the E-Verify program and its system
needs further study of its capabilities and needed functionalities,
that problems with the present technology have not been addressed, that
the requirements of the rule would require major E-Verify system
changes, and that the system is unable at present to handle the
anticipated increases in usage absent the rule. Another commenter was
concerned with the availability of an Internet-based system in the
event of a natural disaster that would inhibit the ability of an
affected company to access a computer and Internet access to use E-
Verify.
Response: The commenters are correct that the FAR rule is expected
to significantly add to the number of queries run through the E-Verify
system. However, many commenters in addressing this issue did so in
terms of a nationwide mandatory expansion of E-Verify to all employers
and cited statistics that would apply to such an expansion. Based upon
their exaggerated projections, the commenters assert that there is a
high probability that disputes will not be resolved in a timely manner.
But the numbers of employers and workloads associated with this FAR
rule would be far less than they would be under a nationwide mandatory
system, and they would not be difficult to absorb. The Councils, in
consultation with DHS and SSA, are confident that the system will be
able to accommodate the required greater volume of enrollments and
queries within the time allotted. The Verification Information System
(VIS), which is the database that supports E-Verify, underwent vigorous
load testing in July 2007 in partnership with the SSA data systems.
Those tests conclusively showed that the existing VIS will scale to
meet even the most demanding current estimate of VIS operation,
considering peak volumes for both queries and registrations. Currently,
VIS is capable of handling 40 million queries annually. The testing
found that the E-Verify system has the capacity to accommodate at least
240 million queries annually, four times the projected 60 million new
hire queries per year that would result from mandatory E-Verify
legislation applicable to all U.S. employers. It is also worth noting
that the employer registration process is automated, and testing
indicates that E-Verify is capable of handling up to 145,500
registrations per day, well over the estimated 4,000 per day that would
occur under a nationwide all U.S. employer use scenario.
As of September 13, 2008, over 85,500 employers representing over
446,000 sites are registered for E-Verify. This calendar year,
approximately 10 percent of all new hires nationwide have been run
through the E-Verify system. In fiscal year 2008 to date, E-Verify has
run over 6.2 million new hires through the program, which is nearly
double the 3.2 million new hires run through the program in all of
fiscal year 2007. Both SSA and DHS agree the current system is more
than adequate to handle the volume increase associated with the FAR
rule.
With respect to comments regarding contingency plans in the event
of a failure of information technology systems in a natural disaster,
the Councils believe that the agencies and the Government generally
have standards and requirements for such circumstances. USCIS and SSA
are required to follow Federal Government policies and procedures
related to
[[Page 67665]]
information technology continuity of operations and emergency planning.
In any event, section 403(a)(3)(B) and the MOU provide for an extension
of the three day period if E-Verify systems are down.
5. Other Impacts on Society
a. Macroeconomic Impact
Comment: Many commenters, notably community organizing groups and
religious societies, an agricultural employer, trade associations, a
human resources society and several individual employers stated that
the rule will have a ``devastating effect'' on the United States
economy, will lead to increased discrimination and an unwillingness to
hire workers who look or sound foreign, and will lead contractors who
need workers to hire them ``off the books.'' One commenter stated that
``the economic impact of this regulation could be devastating to the
point where agriculture in the United States will cease to operate as
it does today.'' In this same vein, several commenters stated that this
is not an appropriate time for this rule, given a recent ``meltdown''
of the American economy, the mortgage crisis, and the resulting
difficulties currently faced by United States employers and employees.
Response: The Councils consider these comments as outside of the
scope of this rulemaking. The Councils are implementing a directive
from Executive Order 12989 that Federal contractors agree to use an
electronic eligibility verification system designated by the Secretary
of Homeland Security to verify the employment eligibility of all
persons hired during a contract term by a contractor to perform
employment duties within the United States and of all persons assigned
by the contractor to perform work within the United States on the
Federal contract. Decisions related to the potential impact of this
directive on the entirety of the United States economy or on individual
sectors within the United States economy are not delegated to or
exercised by the Councils in this rulemaking.
Moreover, these comments obviously assume that the existing Form I-
9 process does not verify employment authorization, and that there will
be a significant change in the number and type of employees found
authorized to work in the United States with the implementation of E-
Verify for Federal contractors. This should not be the case. E-Verify
is merely a better means of verifying the work eligibility of the
Federal contractor workforce. The Councils are not persuaded that
permitting a less effective verification system to continue for the
purpose of maintaining a status quo in which illegal employment is
common is a valid reason not to implement the system as to all Federal
contractors when a more effective system is available that will create
a more stable and dependable cadre of Federal contractors.
As to driving employers to hire more illegal workers ``off the
books,'' the Councils' position is that all Federal contractors are
bound to comply with Federal, State and local laws, and that they
should continue to do so should they wish to continue to contract with
the Federal Government.
b. Religious and Disability Accommodation
Comment: One commenter stated that requirements to access the
Internet violate some religious tenets, making the rule discriminatory.
Other commenters indicated that the requirement that employees present
a photographic identification unduly burdens certain religious beliefs.
Another commenter requested confirmation that the E-Verify system would
accommodate persons with visual disabilities.
Response: While the Councils remain sensitive to the concerns of
different religious groups, they must balance those concerns against
the need to have stable and dependable Government contracting and to
minimize document fraud in the E-Verify program in support of that
goal. In particular, photographs serve a unique and essential function
and significantly minimize the opportunities for document fraud, unlike
fingerprints, by allowing a contractor to immediately compare the
picture embedded in the document against the employee. IIRIRA Section
403(a)(2)(A)(ii), 8 U.S.C. 1324a note, thus requires photo
identification from employees of employers participating in the E-
Verify program. In order to be consistent with these standards, the E-
Verify MOU requires all employees of Federal contractors participating
in E-Verify to present a photographic identification document.
The Councils recognize that there may be occasions where U.S.
citizens assert that religious beliefs preclude their being
photographed and, as a result, they may not be able to present the
required photographic documentation. The E-Verify program complies with
all applicable civil rights laws and will provide accommodations where
appropriate, as required by law, on a case-by-case basis.
DHS is also implementing other processes and procedures to
accommodate religious beliefs and disabilities, as required by law, in
relation to the E-Verify program. These include telephonic means of
verifying employment authorization. These alternative employment
authorization verification methods will permit compliance with E-Verify
while accommodating user religious beliefs and disabilities.
c. Employment Discrimination
1. Comment: One commenter stated that E-Verify creates grave risks
for immigrant women, particularly those who are victims of domestic
violence, human trafficking, sexual assault and other criminal activity
to the extent the program requires employers to enter the name, SSN and
other identifying information of each employee into the E-Verify
database, which is then available to the public. The commenter alleged
that, as such, E-Verify does not adhere to Violence Against Women Act
(VAWA) and Trafficking Victims Protection Act (TVPA) confidentiality
provisions.
Response: The Councils agree that the E-Verify program should be
conducted in compliance with all Federal laws, rules and regulations
related to privacy and confidentiality of personally identifiable
information. USCIS and the SSA do comply with all of those requirements
in the administration of E-Verify program. Contractors are required by
MOU to safeguard confidential information, and means of access to it
(such as PINS and passwords) to ensure that it is not used for any
other purpose and as necessary to protect its confidentiality,
including ensuring that it is not disseminated to any person other than
employees of the employer who are authorized to perform the employer's
responsibilities under the E-Verify MOU. The Councils direct the
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