New Senator from Idaho: Will He Bring More Government Intrusion into Business, Rather Than Less?
Aug 31st, 2007 | Comments
Rumored that he will be Senator Larry Craig’s replacement… On Lieutenant-Governor James E Risch’s page at the Governor’s website are the four or five Initiatives he stands for.
One is on helping Idahoan businesses verify that new employees are properly papered to work in the USA.
Alien Verification Initiative
The State of Idaho has made the decision to work as a partner with the federal government to fight illegal immigration. The tool that makes this possible is a federal program called S.A.V.E. (Systematic Alien Verification for Entitlements).
Simply put, the S.A.V.E. program provides employers like the State of Idaho and businesses of all sizes a no-cost way to confirm that the people they hire are indeed eligible to work in America. Participation in the program is voluntary and free.
In Idaho, the state is taking the lead by signing up for this program to make sure your tax dollars are not funneled into the pockets of illegal aliens. The state is also encouraging businesses across Idaho to follow this lead and sign up for this voluntary program.
Illegal immigration is a complex and difficult issue. But here in Idaho, we can do our part by making sure that illegal aliens aren’t rewarded with jobs for breaking our nation’s laws. Signing up for this alien verification program is quick, easy, and free. And most important, it’s the right thing to do.
How it Works
This federal program allows employers to verify the employment eligibility of their newly hired employees by verifying employment eligibility with the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases via a Web-Based Access Method.
Participation in this program is voluntary, and is free to participating employers.
So far, some might think this sounds like a good thing. Perhaps. Except that the advertising for this ‘free’ service, sounds benign… but caveat emptor on agreements of any kind, always: better read the fine print.
Once you read the fine print of the agreement Idahoan businesses must sign to access this new service, you realize this service is not going to be ‘free’ … it will cost the employer a bag of cash to have at least one employee do all the paperwork ongoing, keep and submit all the records the Feds will now require, and should the Feds decide to make a sudden unannounced ‘audit’ at the business, to lose several employees’ days of work in the scramble to show and tell and find and catch and carry.
No, it’s not ‘free.’ And more so: it opens a business’s security to the many-eyed arms of Homeland Security, at will.
The agreement employers have to sign to get verification on employees with the Social Security Administration, includes also a legal agreement to carry and report to and through Homeland Security. There seem to be at least two if not three government agencies suddenly at one’s, not behest, but over one’s shoulder. The agreement’s ideal is that employers agree to just that: Government watching the very ones who presumably are trying to be within the current law. The business must agree as well to the fact that they will be sued by the Feds if they in any way do not keep the Government’s demands to the letter.
To me, this reads somewhat like a boilerplate publishing contract, where without an agent, the book contact is all geared to the benefit of the publisher rather than the author. Perhaps one would expect such tilted contracts to be offered in commerce, as some publishers are well known as ones who try to get away with all they can when the author is naive. But, maybe government representing ‘the people’ ought be different?
Read it yourself and see what you think. To have more solid boundaries to enforce the law, does there also have to be more regulation of business and answering to government with reports generated by business? Ought ‘less government’ ask a business to agree beforehand, in writing, to take on all legal liability, ad infinitum? That you surrender all confidentiality not only for Freedom of Info queries but for ‘advertising’ if the Government so deigns? If you were a lawyer, would you advise your client to sign this agreement, as is?
Because you have to pass through several screens and give info to get to it, at least I did, I put the agreement Idahoan businesses must sign in order to gain a ‘legal to work in USA check system’ via the Feds, on the next page.
E-VERIFY
MEMORANDUM OF UNDERSTANDING
ARTICLE I
PURPOSE AND AUTHORITY
This Memorandum of Understanding (MOU) sets forth the points of agreement between the Social Security Administration (SSA), the Department of Homeland Security and ________________ (Employer) regarding the Employer’s participation in E-Verify. E-Verify is a pilot program in which the employment eligibility of all newly hired employees will be confirmed after the Employment Eligibility Verification Form (Form I-9) has been completed.
Authority for E-Verify is found in Title IV, Subtitle A, of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009.
ARTICLE II
FUNCTIONS TO BE PERFORMED
A.RESPONSIBLITIES OF THE SSA
1.Upon completion of the Form I-9 by the employee and the Employer, and provided the Employer complies with the requirements of this MOU, SSA agrees to provide the Employer with available information that will allow the Employer to confirm the accuracy of Social Security Numbers provided by all newly hired employees and the employment authorization of some newly hired employees.
2.The SSA agrees to provide to the Employer appropriate assistance with operational problems that may arise during the Employer’s participation in E-Verify. The SSA agrees to provide the Employer with names, titles, addresses, and telephone numbers of SSA representatives to be contacted during E-Verify.
3.The SSA agrees to safeguard the information provided by the Employer through E-Verify procedures, and to limit access to such information, as is appropriate by law, to individuals responsible for the verification of Social Security Numbers and for evaluation of E-Verify or such other persons or entities who may be authorized by the SSA as governed by the Privacy Act (5 U.S.C. § 552a), the Social Security Act (42 U.S.C. 1306(a)), and SSA regulations (20 CFR Part 401).
4.SSA agrees to establish a means of automated verification that is designed (in conjunction with the Department of Homeland Security’s automated system if necessary) to provide confirmation or tentative nonconfirmation of employees’ employment eligibility within 3 Federal Government work days of the initial inquiry.
5.SSA agrees to establish a means of secondary verification (including updating SSA records as may be necessary) for employees who contest SSA tentative nonconfirmations that is designed to provide final confirmation or nonconfirmation of the employees’ employment eligibility within 10 Federal Government work days of the date of referral to SSA, unless it determines that more than 10 days may be necessary. In such cases, SSA will provide additional verification instructions.
B.RESPONSIBLITIES OF THE DEPARTMENT OF HOMELAND SECURITY
1.Upon completion of the Form I-9 by the employee and the Employer, and completion by the Employer of SSA verification procedures required prior to initiation of Department of Homeland Security verification procedures, the Department of Homeland Security agrees to provide the Employer access to selected data from the Department of Homeland Security’s database to enable the Employer to conduct automated verification checks on newly hired alien employees by electronic means.
2.The Department of Homeland Security agrees to provide to the Employer appropriate assistance with operational problems that may arise during the Employer’s participation in E-Verify. The Department of Homeland Security agrees to provide the Employer names, titles, addresses, and telephone numbers of Department of Homeland Security representatives to be contacted during E-Verify, including one or more individuals in each Department of Homeland Security district office covering an area in which the Employer hires employees covered by this MOU.
3.The Department of Homeland Security agrees to provide to the Employer a manual containing instructions on E-Verify policies, procedures and requirements for both SSA and Department of Homeland Security, including restrictions on use of E-Verify procedures (the E-Verify Manual). The Department of Homeland Security agrees to provide training materials on E-Verify.
4.The Department of Homeland Security agrees to provide to the Employer a notice, which indicates the Employer’s participation in E-Verify. The Department of Homeland Security also agrees to provide to the Employer anti-discrimination notices issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice.
5.The Department of Homeland Security agrees to issue the Employer a user identification number and password that will permit the Employer to verify information provided by alien employees with Department of Homeland Security’s database.
6.The Department of Homeland Security agrees to safeguard the information provided to the Department of Homeland Security by the Employer, and to limit access to such information to individuals responsible for the verification of alien employment eligibility and for evaluation of E-Verify, or to such other persons or entities as may be authorized by applicable law. Information will be used only to verify the accuracy of Social Security Numbers and employment eligibility, to enforce the INA and federal criminal laws, and to ensure accurate wage reports to the SSA.
7.The Department of Homeland Security agrees to establish a means of automated verification that is designed (in conjunction with SSA verification procedures) to provide confirmation or tentative nonconfirmation of employees’ employment eligibility within 3 Federal Government work days of the initial inquiry.
8.The Department of Homeland Security agrees to establish a means of secondary verification (including updating Department of Homeland Security records as may be necessary) for employees who contest Department of Homeland Security tentative nonconfirmations that is designed to provide final confirmation or nonconfirmation of the employees’ employment eligibility within 10 Federal Government work days of the date of referral to the Department of Homeland Security, unless it determines that more than 10 days may be necessary. In such cases, the Department of Homeland Security will provide additional verification instructions.
C. RESPONSIBILITIES OF THE EMPLOYER
1.The Employer agrees to display the notices supplied by the Department of Homeland Security in a prominent place that is clearly visible to prospective employees.
2.The Employer agrees to provide to the SSA and the Department of Homeland Security the names, titles, addresses, and telephone numbers of the Employer representatives to be contacted regarding E-Verify.
3.The Employer agrees to become familiar with and comply with the E-Verify Manual.
4.The Employer agrees that all Employer Representatives performing employment verification queries will complete the E-Verify Web-Based Tutorial.
5.The Employer agrees to comply with established Form I-9 procedures, with one exception: When an employee presents a “List B” identity document, the Employer agrees that it will only accept “List B” documents that contain a photograph. (List B documents identified in 8 C.F.R. § 274a.2(b)(1)(B)) can be presented during the Form I-9 process to establish identity).
6.The Employer understands that 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, except for the following modified requirements applicable by reason of the Employer’s participation in E-Verify: (1) identity documents must have photographs, as described in paragraph 5 above; (2) a rebuttable presumption is established by section 403(b) of IIRIRA that the Employer has not violated section 274A(a)(1)(A) of the INA with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in compliance with the terms and conditions of E-Verify; (3) the Employer must notify the Department of Homeland Security if it continues to employ any employee after receiving a final nonconfirmation, and is subject to a civil money penalty between $500 and $1,000 for each failure to notify the Department of Homeland Security of continued employment following a final nonconfirmation; (4) the Employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of section 274A(a)(1)(A) if the Employer continues to employ any employee after receiving a final nonconfirmation; and (5) no person or entity participating in E-Verify shall be civilly or criminally liable under any law for any action taken in good faith on information provided through the confirmation system. The Department of Homeland Security reserves the right to conduct Form I-9 compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law.
7.The Employer agrees to initiate the E-Verify verification procedures within 3 Employer business days after each employee has been hired (but after both sections 1 and 2 of the Form I-9 have been completed), and to complete as many (but only as many) steps of the E-Verify process as are necessary according to the E-Verify Manual. The Employer is prohibited from initiating verification procedures before the employee has been hired and the Form I-9 completed. If the automated system to be queried is temporarily unavailable, the 3-day time period is extended until it is again operational in order to accommodate the Employer’s attempting, in good faith, to make inquiries during the period of unavailability. In all cases, the Employer will use the SSA verification procedures first, and will use the Department of Homeland Security verification procedures only as directed by the SSA verification response.
8.The Employer agrees not to use the E-Verify procedures for pre-employment screening of job applicants, support for any unlawful employment practice, or any other use not authorized by this MOU. The Employer will not verify selectively; it agrees to use the E-Verify procedures for all new hires as long as this MOU is in effect. The Employer agrees not to use E-Verify procedures for reverification, or for employees hired before the date this MOU is in effect. The Employer understands that should the Employer use the E-Verify procedures for any purpose other than as authorized by this MOU, the Employer may be subject to appropriate legal action and the immediate termination of its access to SSA and Department of Homeland Security information pursuant to this MOU.
9.The Employer agrees not to take any adverse action against an employee based upon the employee’s employment eligibility status while SSA or the Department of Homeland Security is processing the verification request unless the Employer obtains knowledge (as defined in 8 C.F.R. § 274a.1(l)) that the employee is not work authorized. The Employer understands that an initial inability of the SSA or Department of Homeland Security automated verification to verify work authorization, or a tentative nonconfirmation, does not mean, and should not be interpreted as, an indication that the employee is not work authorized.
10.The Employer agrees to comply with section 274B of the INA by not discriminating unlawfully against any individual in hiring, firing, or recruitment practices because of his or her national origin or, in the case of a protected individual as defined in section 274B(a)(3) of the INA, because of his or her citizenship status. The Employer understands that such illegal practices can include discharging or refusing to hire eligible employees because of their foreign appearance or language, and that any violation of the unfair immigration-related employment practices provisions of the INA could subject the Employer to civil penalties pursuant to section 274B of the INA and the termination of its participation in E-Verify. If the Employer has any questions relating to the anti-discrimination provision, it should contact OSC at 1-800-255-7688 or 1-800-237-2515 (TDD).
11.The Employer agrees to record the case verification number on the employee’s Form I-9 or to print the screen containing the case verification number and attach it to the employee’s Form I-9.
12.The Employer agrees that it will use the information it receives from the SSA or the Department of Homeland Security pursuant to the E-Verify and this MOU only to confirm the employment eligibility of newly-hired employees after completion of the Form I-9. The Employer agrees that it will safeguard this 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 need it to perform the Employer’s responsibilities under this MOU.
13.The Employer acknowledges that the information which it receives from SSA is governed by the Privacy Act (5 U.S.C. § 552a(i)(1) and (3)) and the Social Security Act (42 U.S.C. 1306(a)), and that any person who obtains this information under false pretenses or uses it for any purpose other than as provided for in this MOU may be subject to criminal penalties.
14.The Employer agrees to allow the Department of Homeland Security and SSA, or their authorized agents or designees, to make periodic visits to the Employer for the purpose of reviewing E-Verify-related records, i.e., Forms I-9, SSA Transaction Records, and Department of Homeland Security verification records, that were created during the Employer’s participation in E-Verify. In addition, for the purpose of evaluating E-Verify, the Employer agrees to allow the Department of Homeland Security and SSA or their authorized agents or designees, to interview it regarding its experience with the E-Verify, to interview employees hired during E-Verify concerning their experience with the pilot, and to make employment and E-Verify-related records available to the Department of Homeland Security and the SSA, or their designated agents or designees.
ARTICLE III
REFERRAL OF INDIVIDUALS TO THE SSA AND THE DEPARTMENT OF HOMELAND SECURITY
A. REFERRAL TO THE SSA
1.The Employer will refer individuals to SSA field offices only as directed by the automated system based on a tentative nonconfirmation, and only after the Employer records the case verification number, reviews the input to detect any transaction errors, and determines that the employee contests the tentative nonconfirmation. The Employer will transmit the Social Security Number to SSA for verification again if this review indicates a need to do so. The Employer will determine whether the employee contests the tentative nonconfirmation as soon as possible after the Employer receives it.
2.If the employee contests an SSA tentative nonconfirmation, the Employer will provide the employee with a referral letter and instruct the employee to visit an SSA office to resolve the discrepancy within 8 Federal Government work days. The Employer will make a second inquiry to the SSA database using the E-Verify procedures on the date that is 10 Federal Government work days after the date of the referral in order to obtain confirmation, or final nonconfirmation.
3.The Employer agrees not to ask the employee to obtain a printout from the Social Security Number database (the Numident) or other written verification of the Social Security Number from the SSA (other than the Social Security Number Card).
B. REFERRAL TO THE DEPARTMENT OF HOMELAND SECURITY
1.The Employer agrees to refer individuals to the Department of Homeland Security only when the verification response received from the Department of Homeland Security automated verification process indicates a tentative nonconfirmation, and the employee contests the tentative nonconfirmation. The Employer will determine whether the employee contests the tentative nonconfirmation as soon as possible after the Employer receives it.
2.If the Employer receives a tentative nonconfirmation from the Department of Homeland Security, the Employer will record the case verification number and date on the Form I-9 or print the screen showing the case verification number and attach the printout to the Form I-9, determine whether the employee contests the tentative nonconfirmation, and instruct an employee who contests to contact the Department of Homeland Security to resolve the discrepancy within 8 Federal Government work days, using E-Verify procedures. The Department of Homeland Security will electronically transmit the result of the referral to the Employer within 10 Federal Government work days of the referral.
ARTICLE IV
SERVICE PROVISIONS
The SSA and the Department of Homeland Security will not charge the Employer for verification services performed under this MOU. The Employer shall be responsible for providing equipment needed to make inquiries. To access E-Verify, an Employer will need a personal computer with Internet access.
ARTICLE V
PARTIES
This MOU is effective upon the signature of all parties, and shall continue in effect for as long as the SSA and the Department of Homeland Security conduct E-Verify unless modified in writing by the mutual consent of all parties, or terminated by any party upon 30 days prior written notice to the others. Termination by any party shall terminate the MOU as to all parties. The SSA or the Department of Homeland Security may terminate this MOU without prior notice if deemed necessary because of the requirements of law or policy, or upon a determination by SSA or the Department of Homeland Security that there has been a breach of system integrity or security by the Employer, or a failure on the part of the Employer to comply with established procedures or legal requirements. Some or all SSA and Department of Homeland Security responsibilities under this MOU may be performed by contractor(s).
Nothing in this MOU is intended, or should be construed, to create any right or benefit, substantive or procedural, enforceable at law by any third party against the United States , its agencies, officers, or employees, or against ________________ (Employer), its agents, officers, or employees.
Each party shall be solely responsible for defending any claim or action against it arising out of or related to E-Verify or this MOU, whether civil or criminal, and for any liability therefrom, including (but not limited to) any dispute between the Employer and any other person or entity regarding the applicability of Section 403(d) of IIRIRA to any action taken or allegedly taken by the Employer.
The employer understands that the fact of its participation in E-Verify is not confidential information and may be disclosed as authorized or required by law and USCIS or SSA policy, including but not limited to, Congressional oversight, E-Verify publicity and media inquiries, and responses to inquiries under the Freedom of Information Act (FOIA).
The foregoing constitutes the full agreement on this subject between the SSA, the Department of Homeland Security, and the Employer.
