Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The Senate vote fell on the same day the DHS Secretary Janet Napolitano announced that the Administration supports a regulation that would require all federal contractors to use E-Verify. In a DHS press release, Napolitano stated that “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce. Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce.” The federal contractor rule advocated by the DHS would extend the use of E-Verify to covered federal contractors and subcontractors, including those who receive funds provided by the American Recovery and Reinvestment Act, otherwise known as the economic stimulus package. According to the press release, “the administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.” At the same time, the DHS plans to rescind its Social Security No-Match Rule, which was never implemented and had been blocked by a court order.

The Senate yesterday also approved by voice vote an amendment (S. AMDT. 1407) introduced by Sen. Patrick Leahy (D-VT) to make the EB-5 Regional Center Pilot Program permanent. EB-5 visas are awarded to qualified foreigners seeking to invest at least $1 million (or in certain circumstances, $500,000) in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs.

E-Verify is an Internet-based system that allows employers to determine the employment eligibility of current or potential employees and to verify their social security numbers and other identifiers by providing a link to federal databases. Operated by the U.S. Citizenship and Immigration Services (USCIS) in conjunction with the Social Security Administration (SSA), E-Verify is currently a voluntary program. A rule requiring certain federal contractors and subcontractors to use E-Verify was recently delayed for the fourth time until September 8, 2009.

The Employee Verification Amendment Act would also extend the EB-5 Regional Center Pilot and the Special Immigrant Nonminister Religious Worker Programs, as well as the waiver of the foreign country residence requirement for certain international medical graduates through September 30, 2014.

This bill has been referred to the House Committees on the Judiciary, Education and Labor, and Ways and Means.

The E-Verify program is an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA). Participating employers can check the work status of new hires online by comparing information from an employee's I-9 form against SSA and Department of Homeland Security databases. To date, this program has been primarily voluntary. Regulations requiring that certain government contractors use E-Verify have been postponed until May 21, 2009. Additionally, a number of new employment-related bills introduced this session would mandate that all employers use E-Verify.

The EB-5 investor program awards visas to immigrants who: (1) invest in a new business or an existing one; (2) invest $500,000 or $1,000,000 of capital into that business depending upon the area in which the business is formed; (3) invest in a business that benefits the U.S. economy and creates full-time employment (directly) for at least 10 U.S. workers; and (4) participate in the management of the new business. 

The Department of Homeland Security’s Citizenship and Immigration Services (USCIS) has announced that it will process as many EB-5 petitions as it can before the March 6 expiration date.  In addition, unless and until Congress extends the program, the USCIS will hold any unprocessed petitions received prior to this date for an indefinite period of time while it awaits congressional action.

In addition to these provisions, the omnibus bill bestows $54.2 billion on the Labor Department, a more than $2 billion bump in funding over that sought by former President Bush.  Many domestic agencies governing labor and employment laws would receive a considerable increase in their funding under this measure.  In addition to supporting a number of job-training programs, these resources will likely be used to bolster the agencies’ enforcement powers.

The Senate is not expected to begin consideration of this bill until next week at the earliest.