(March 5, 2009) The recently passed federal stimulus package, also known as the American Recovery and Reinvestment Act of 2009, involved two sets of key immigration amendments.
One set of amendments dealt with mandates of the experimental Basic Pilot program, also known as E-Verify and the other with H-1B Visas. The stimulus package that came out of conference and was signed by President Barack Obama on February 17 effectively removed the E-Verify mandates and included an amendment under the H-1B Visa program.
E-Verify Mandate
The U.S. House of Representatives version of the stimulus package contained a requirement that every contractor receiving funds under the stimulus package bill enroll in the Basic Pilot/E-Verify program. It was later removed from the U.S. Senate version and ultimately taken out of the final package.
The Web-based E-Verify program is currently voluntary and allows employers to check the legal status of employees by matching their name and Social Security number against databases maintained by the Social Security Administration and Department of Homeland Security (DHS).
The program has come under scrutiny because it has been plagued by serious problems that include misidentifying U.S. citizens as not authorized for employment. In 2007, for example, the DHS commissioned an independent study which concluded that “the database used for verification is still not sufficiently up to date to meet the requirements for accurate verification.” The error rate was nearly 10 percent for foreign-born U.S. citizens.
H-1B Visas
U.S. Sens. Charles Grassley (R-Iowa) and Bernie Sanders (Ind-Vermont) introduced an amendment prohibiting firms receiving money under the stimulus bill from hiring any foreign worker under the H-1B Visa program. After the amendment was changed to allow hiring of H-1B workers, if the employer overcame additional restrictions, the language was kept in the final stimulus package.
The new requirement sunsets in two years and the restrictions, particularly that the employer does not lay off any similarly employed U.S. worker within 90 days before or after applying for an H-1B worker, serves as a bar to most corporate recipients of money under the stimulus bill from using the H-1B program.
Contractor Requirement Delayed
In addition to the news as it relates to the stimulus package, an executive order scheduled to go into effect in March that would require all federal contractors to use E-Verify was recently delayed. According to Homeland Security Secretary Janet Napolitano, the Obama Administration plans to delay the rule until May 21 “to see what needs to be done to increase the capacity for the E-Verify system.”
As currently adopted, the rule applies to contracts if the company is providing work on the “prime [federal] contract” only. The threshold is $100,000, but if the contract is “to furnish supplies or services for performance of a prime contract or a subcontract,” it is $3,000. It is unclear how much responsibility and liability the prime contractor or subcontractor would have for the use of E-Verify by its own subcontractors.
Staff Contact: Jeanne Cain