"The E-Verify Employers and Federal Contractors Lists provide the business name, city, state and ZIP code used during registration with E-Verify. They also indicate which businesses are federal contractors and provide other information such as workforce size. Click here to see these lists" stated the USCIS web release.

We were very pleased to see that the USCIS offered caveats to be considering when searching these lists. Such caveats are critical when searching the lists for particular employers. Specifically, we do not recommend using the list to confirm or deny E-Verify participation of a particular employer. 

Caveats for reviewing the E-Verify Employers and Federal Contractors Lists:

• The lists only includes employers and federal contractors who have self-reported that their company has five or more employees.
• Not all business locations of an employer enrolled in E-Verify may be found on the lists. The absence of a business location does not mean or imply that the business operating at the unlisted location either is or is not enrolled in E-Verify.
• Naming conventions used by employers may not be recognizable to the public. When an employer enrolls in E-Verify, the employer uses the legal name of the individual or business entity. In many cases, however, an employer may use a trade name for public business purposes.
• E-Verify does not collect contract information.
• The E-Verify Employers and Federal Contractors Lists will be updated on a quarterly basis and the current postings are include employers and federal contractors enrolled in E-Verify through March 15, 2012.

More on I-9 updates including a an analysis of the proposed new Form I-9 and ICE's recent worksite activity will be posted shortly.

"Hello, this is Attorney Smith with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, may I speak to the Human Resource manager in charge of your Form I-9 process?"

You say to yourself, “This is not good. I have no idea what this government agency is — Office of the Special Counsel for...what?” Your gut confirms: this does not sound good at all.

"This is she. I'm sorry, you are with whom?"

"The Office of Special Counsel for Immigration-Related Unfair Employment Practices...the OSC. I'm calling about a complaint our office received regarding your company re-verifying Permanent Residents, requiring applicants to complete Forms I-9 before you offer them employment and, last but not least, asking certain employees to bring in Social Security cards."

You ask yourself, “Is this as serious as it sounds? What do I do now?”

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA). Investigations by the OSC should be taken very seriously. Our recent GT Alert reviews how the OSC investigates charges - including several examples - and the compliance strategies that companies should consider.

The Department of Homeland Security has automatically extended the EADs for nationals of El Salvador with TPS until September 9, 2012. It is critical that employers know that they may continue to employ workers with TPS from El Salvador until September 9, 2012. OSC anticipates that its guidance will assist employers in avoiding claims of discrimination in the employment eligibility verification process by reminding them that, despite the rule that Employment Eligibility Verification Form I-9 documents must be unexpired, in this case it is permissible to continue to employ a worker with a TPS extension. In the past, employers have not had the benefit of such guidance and often terminated or refused to hire workers that indeed were eligible to work but could not present valid work authorization.

Read our recent GT Alert on this developing issue.

GT expects that in 2012 the government will continue to increase scrutiny of the program itself, as well as of Regional Centers and individual projects. With the program growing exponentially in 2011 and the press beginning to take a look under the rocks, ensuring compliance will be more critical than ever. Whether you are a developer, project seeking funding, regional center principle or foreign investor, it is crucial that you understand the obligations, implications and responsibilities of all parties involved in this type of foreign investment.

The webinars are free and open to the general public. The first webinar, held on December 6, 2011, discussed the protections available to workers and their advocates. A second webinar, scheduled for 3:00 PM EST on December 15, 2011, will advise employers and human resources professionals on avoiding workplace discrimination.

OSC is hosting the webinar series through InstantPresenter.com and will also post short educational videos on Vimeo.com. To participate in a webinar, online registration at www.justice.gov/crt/about/osc/webinars.php is required. To participate as a large or specialized group, please contact OSC’s Public Affairs Specialist, Terry Scott, at Terence.j.scott@usdoj.gov. For accommodation requests, please contact Lyn Sowdon at Lyn.Sowdon@usdoj.gov with your contact information and a description of the type of accommodation requested.

 By: Dawn Lurie and Kate Kalmykov

USCIS Director Alejandro Mayorkas invites stakeholders to review and comment on a draft policy memorandum (EB-5 AdjudicationsPolicy.pdf) on the EB-5 program. Greenberg Traurig, LLP will be submitting comments on behalf of our Regional Center clients and individual investors. GT attorneys attended the Director's teleconference and will be forwarding an Alert assessing the proposed guidance shortly. This memorandum is proof of Director Mayorkas' intensive focus to improve the EB-5 program is bearing fruit. Accordingly with improvements to the program we can expect more scrutiny and compliance monitoring on both the immigration and corporate securities side. Director Mayorkas stated that it is critical that the program ensures integrity and mentioned that any improprieties were already being referred to the Department of Justice and the Securities and Exchange commission.

It is more critical than ever for Regional Centers to ensure broad compliance and establish procedures for vetting proposed investment projects in light of current federal regulations and changing USCIS guidance. It seems to us that many Regional Centers do not understand the importance of correctly preparing a securities offering and structuring EB-5 investment projects. As the program expands we can undoubtedly expect increased scrutiny not just from USCIS but from the SEC as well. Likewise, in our representation of regional centers other common areas where even the most experienced find themselves stumbiling include job-creation or job-preservation projections, TEA designation, investor exit strategy, investment return and reinvestment issues. The proposed memoranda touches on many of these issues and those active in the EB-5 arena should be prepared for changes.

NOIs will include requests for hiring, payroll and other records to determine compliance with employment eligibility verification laws. Employers will be expected to produce original I-9s within three days from service of the NOI. These audits were driven by ICE headquarters and it’s unlikely that requests for extensions of time will be granted for the I-9 production; however, payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and related information generally can be submitted later than the three day time period. Our February 2011 and June 2011 GT Alerts discuss what employers should do if they receive a NOI from ICE.

If your company was not selected by ICE, consider yourself lucky; be smart, be proactive and consider the following:

• Review your I-9 related compliance
• Conduct internal audits and act on the results
• Do not ignore Social Security and non-traditional no-match notifications and potential identity theft issues
• Provide ongoing training to those individuals completing Form I-9s
• Consider E-Verify and other best practices
• Adopt a basic compliance plan

This administration continues to make it clear that the days when immigration compliance could be ignored and considered the “cost of doing business” are long gone. Administrative audits, which can lead to criminal charges against the company and its officers and directors continue to be the tool of choice of ICE, and employers can expect these surges several times a year.

As ICE ramps up its auditor’s capabilities we can expect the inspections to become more sophisticated. With the USCIS transformation team likely moving towards integration of the Form I-9 and E-Verify, the increased use of electronic I-9s, additional monitoring of the E-Verify system and a better trained and focused core of ICE agents, employers absolutely must consider the importance of proactive compliance planning and training. A large of part of this process should include practices to detect identity theft and fraud issues. Although enforcement mechanisms may change, one thing is for certain: the focus on audits and other worksite enforcement actions will continue.

While E-Verify, when used in conjunction with other best practices, can greatly assist employers in ensuring an authorized workforce, these random E-Verify laws may confuse employers. California appears to be taking a stance on the issue, recognizing, perhaps, that a patchwork of local immigration laws with different requirements, different phase in dates, and enormous penalties at city and state levels makes it difficult for national companies to operate without running afoul of a law (or two). Will the federal government follow suit? It costs companies time and money to keep abreast of these laws - and even more time and money to determine whether or not the laws apply to their businesses. Our experience is that many public companies are unaware of what is required of them in terms of E-Verify and how the procedures for complying with the state laws should be implemented internally.

In fact based on our experience, many companies that are required to use E-Verify under the Federal Contractor FAR rule still have not properly flowed down the regulations to their subcontractors, vendors and suppliers even though the regulation was finalized over two years ago . The feeling seems to be, "If we ignore the requirement long enough it will just go away." That's not likely - monitoring of compliance will probably become more sophisticated on the part of the government. The time is now to begin tackling the E-Verify requirement, general I-9 compliance and the ever expanding list of requirements created by state laws. It's not an easy task considering the current economy, globalization and the long list of priorities businesses must deal with. Nonetheless, even if the odds are low that a company will be scrutinized, the list of potential perils - debarment, loss of business licenses, payback of deductions taken on workers ultimately determined to be unauthorized, monetary fines and penalties - is cause for serious concern.

While the E-Verify California law makes things easier and there has been a lull in national immigration compliance enforcement, national employers should count on a continuing increase in E-Verify mandates and a new round of ICE I-9 enforcement inspections, along with a resurgence of criminal and DOJ investigations in this area.