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Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?
Legislative Background And Campaign Promises
E-Verify was introduced by the U.S. Department of Homeland Security in partnership with the Social Security Administration as a voluntary program. However, many employers in Florida will soon be faced with mandatory implementation of the web-based system to confirm employment eligibility for new hires.
Under preexisting federal law, all employers are required to complete an I-9 Employment Eligibility Verification form for each new employee to verify the identity and eligibility of that employee to work in the United States. Since its inception in 1996, most states have also encouraged voluntary participation in the federal government’s E-Verify program, which compares information supplied by an employer from its Form I-9 to information available to the federal government from various databases. Only nine states require E-Verify for all employers.
Since 2011, E-Verify has been required on all state projects in Florida. However, following a nationwide trend of growing support for the federal employment verification system, Governor Ron DeSantis signed Florida Senate Bill 664 on June 30, requiring all public employers – as well certain private employers – to use E-Verify beginning January 1, 2021.
As a gubernatorial candidate in 2018, DeSantis vowed to mandate the use of E-Verify among all employers in the state. This was controversial and opposed not only by some immigrant advocacy groups, but also by business groups — especially those in agriculture, construction, and hospitality. Following Governor DeSantis’ signing of the bill, a spokesperson explained, “Given the high unemployment rate due to COVID-19, it is more important than ever to ensure that the state’s legal residents benefit from jobs that become available as Florida continue to reopen in a safe and smart manner.” While the measure expands the use of E-Verify, Florida does not join the states that require use of the system in hiring practices for all employers.
What Does the New Law Require?
There are varying obligations for employers depending on whether they are public or private, and whether they contract with the state or receive certain state incentives.
Public Employers And Private Employers Who Contract With The State Or Receive State Incentives
Once in effect, every Florida public employer, along with their private contractors and subcontractors, must enroll in and use the E-Verify system to confirm the eligibility of all employees hired after January 1, 2021. No public contract can be entered into without an E-Verify certificate.
Any contractor who hires a sub must require an affidavit stating that they don’t employ, contract with, or subcontract with any unauthorized immigrants. Importantly, this affidavit provides for all newly hired employees, not just those working on government contracts. This affidavit must be kept by the general contractor for the duration of the contract and all contractors will need to go through this process for each public project.
If a public employer has a good faith belief that these requirements have been knowingly violated, it can terminate the contract, without liability for breach of contract, or demand that its contractor terminate any noncompliant subcontractors. Terminations for purported violations of these requirements may be challenged in court within 20 days of the date of termination. However, if the contractor is in fact found guilty, the contractor will be barred from public contracting for at least a year after termination and may be held liable for any additional costs associated with the termination.
In addition to private employers who contract with public entities, these new E-Verify employment eligibility requirements will also apply to employers who receive taxpayer-funded incentives through the state Department of Economic Opportunity. Beginning on January 1, 2021, the DEO will not approve an economic development incentive application unless the application includes proof that the applicant business is registered with and uses the E-Verify system in the eligibility verification process for all newly hired employees. Should the DEO make a final determination that an awardee has failed to be compliant, the employer will be forced to repay all moneys received by the DEO as an economic incentive.
E-Verify For All Other Private Employers
For private employers who do not contract with the state or receive state incentives, Florida law will now require these private employers to use E-Verify, or alternatively use the Form I-9 and maintain copies of the documents used to complete the Form for three years (which is optional under federal law). If the E-Verify certificate or Form I-9 documentation is requested by certain parties (such as the State Attorney, Attorney General, Department of Law Enforcement, etc.), the employer must provide them with proof of the employee’s eligibility.
Private employers accused of non-compliance will be provided notice from the DEO and the employer must terminate any unauthorized employees, begin complying with the legal procedures, and respond with an affidavit of compliance within 30 days. Failure to do so risks potential suspension of existing licenses until the employer provides such an affidavit. If an employer fails to properly respond to a DEO notice three times in any 36-month period, it could permanently lose its business licenses and may be liable for additional civil or criminal liabilities.
The E-Verify requirements will also go into effect for the private sector on January 1, 2021. This new law will not apply to any employees that were hired before then. However, any existing employment contracts that need to be renewed or extended after that date will be required to go through the verification process without going through the E-Verify process.
Ensuring Compliance Readiness Is The Next Step for Employers
Public employers in Florida and those who bid on contracts with the state should be ready to comply with the new law by updating their onboarding and new hire practices. Private employers who choose not to use E-Verify should continue to complete and maintain Form I-9 verification records, including copies of the documents that were reviewed. The enforcement procedures under the new E-Verify mandate are significant, and failure to comply can seriously impact your ability to do business within the state.
Notably, government scrutiny of employment verification records at both the state and federal level has the potential to increase when the COVID-19 pandemic subsides. You can prepare for government reviews by periodically auditing your employment verification records to ensure you have been completed fully and properly.
Employers that participate in E-Verify, the government’s electronic employment eligibility verification program, have until Feb. 11 to create and enter cases into the system for all hires made during the 35-day partial government shutdown.
U.S. Citizenship and Immigration Services (USCIS), which manages the program, announced that E-Verify has resumed operations, but patience will be required from users as the service is restored.
“Expect delays due to the sheer volume of past E-Verify cases that need to be created, in addition to the fact that employers continue to hire every day and that adds to the queue of cases being created,” said Montserrat Miller, a partner in the Atlanta office of Arnall Golden Gregory. “Employers, you only have a little over two weeks to bring yourself into compliance with the E-Verify requirements given the Feb. 11, 2019 deadline.”
Miller reminded HR professionals that “a case needs to be created for all employees you hired for whom a Form I-9 was completed but you could not create a case in E-Verify because the system was offline due to the shutdown.”
USCIS instructed that employers use the hire date from the employee’s Form I-9 when creating an E-Verify case. If the case creation date is more than three days following the worker’s start date, select “Other” from the drop-down list asking for an explanation and enter “E-Verify Not Available” as the reason.
“Any pending tentative nonconfirmation (TNC) that you and/or your newly hired employee were not able to resolve due to the shutdown needs to be resolved at this time,” Miller said.
If an employee has received a TNC and notified HR of his or her intention to contest it by Feb. 11, employers must add 10 federal business days to the date on the worker’s “Referral Date Confirmation” notice. That’s the date by which the employee must contact the Social Security Administration or Department of Homeland Security to begin resolving the TNC.
Federal business days are Monday through Friday and do not include federal holidays.
There’s no need to add days to the referral date for TNC cases after E-Verify resumed operations. “If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer the employee’s case and follow the TNC process,” Miller said.
Federal contractors should contact their contracting officer for more information about the impact of the government shutdown on their operations related to E-Verify.
The federal government’s electronic employment verification system will be unavailable this weekend due to system upgrades.
U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will be shut down from midnight March 23 to 8 a.m. March 26 Eastern Time. E-Verify users are encouraged to complete and close any open cases prior to the system shutdown.
The Department of Homeland Security and the Social Security Administration will not be able to assist employees with case resolution issues during the outage. myE-Verify, the system’s resource portal for workers, will also be unavailable.
“During the suspension, employers will not be able to access their E-Verify accounts and employees will be unable to resolve E-Verify tentative nonconfirmations,” said Michael H. Neifach, an attorney in the Wahington, D.C., regional office of Jackson Lewis. “The E-Verify outage does not change any Form I-9 requirements,” he added. “Form I-9s must be completed no later than three business days after employment.”
To minimize the shutdown’s impact, the agency stipulated:
USCIS is prepping for a move to an upgraded user interface later this month. Enhanced features are expected to include a streamlined process for creating and managing cases, modernized data-matching to reduce tentative nonconfirmations, and improved data integrity.
After months of negotiations, landmark legislation was unveiled that proposed substantial changes to the U.S. immigration laws.
The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (filed April 16, 2013) lays out a 13-year path to citizenship for most of the 11 million people living in the U.S. illegally, allocates billions of dollars to be spent on border security, creates new legal guest worker programs for low-income jobs and farm labor, mandates the use of E-Verify for most companies hiring new workers and expands overall immigration to the U.S. by 50% in the next 10 years.
The bill proposes ways to clear up green card backlogs, raises the cap for H-1B workers and creates a new “W-visa” program for lower skilled workers.
Aspects of the bill that would impact the workplace include the following:
All employers would be required to use the E-Verify electronic employment verification system, phased in over a 5 year period. Large employers with more than 5000 employees would be phased in within two years.
Every non-citizen would be required to carry a “biometric work authorization card”.
Enhancements to the E-Verify system would include a photo-matching tool and the capability for employees to “lock” their Social Security numbers in the system to prevent others from using them. In order for the non-citizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to match the identical picture the employer has in the E-Verify system. Employers would be required to certify that the photograph presented in person matches the photograph in the system.
The bill addresses what’s been one of the biggest programs with the current system. Beyond employment- based visas, the bill would create an entirely new category of “merit-based” visas. A merit-based visa, created in the fifth year after the bill becomes law, would award points to individuals based on their education, employment, length of residence in the U.S., and other considerations. Individuals with the most points would earn one of the 120,000 visas that will be available per year. The number would increase by 5% annually if demand exceeds supply in any year where unemployment is less than 8.5%.A maximum cap of 250,000 merit-based visas is proposed.
Under this system, the DHS would allocate merit-based immigrant visas beginning Oct. 1, 2014, for employment-based visas that have been pending for 3 years, family based petitions that were filed prior to enactment and have been pending for 5 years, and to long term immigrant workers who have been lawfully present in the country for more than 10 years. It is this category that those who are in the country illegally now would be funneled into after a decade as legalized residents.
Currently, only about 14% of green cards granted are employment based. That percentage could increase to as high as 50% under this proposal. The bill also emphasizes the need to shift immigration resources toward high-skilled immigrants. It creates a start up visa for foreign entrepreneurs who seek to emigrate to the U.S. to launch their own companies.
The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in science, technology, engineering, and mathematics (STEM) fields; and physicians who have completed the foreign residency requirements or have received a waiver.
The bill also redistributes 40% of the worldwide level of employment-based visas to high skilled workers and those who have earned a master’s degree or higher in STEM fields from an accredited U.S. institution. The bill increases the percentage of employment visas for skilled workers and other professionals to 40%, maintains the percentage of employment visas for certain special immigrants to 10% and maintains visas for those who foster employment creation to 10%.
Married children over 30 years of age and siblings of U.S. citizens would no longer be eligible for a family preference in the visa application process and the bill would eliminate the 55,000 Diversity Visa Program recipients awarded by lottery each year that go largely to immigrants from Africa and Eastern Europe.
Those who were or are selected for diversity immigrant visas for fiscal years 2013 or 2014 would still receive their visas.
The plan calls for a sizable increase in high-skilled visas, fees for employers that hire large numbers of foreign workers, and institutes a ban on those companies applying for additional H-1B visas in the future.
The legislation would increase the current number of H-1B visas from 65,000 to 110,000. The current 20,000 visa exemption for U.S. advanced degree holders would be amended to a 25,000 visa exemption for advance degree graduates in science, technology, engineering, and mathematics from U.S. schools.
Provisions designed to keep high-skilled hiring from hurting U.S. tech workers include “H-1B dependent employers” paying significantly higher wages and fees than normal users of the program and prohibiting companies whose U.S. workforce largely consists of foreign guest workers from obtaining additional H-1B and L visas. In 2014, companies will be banned from bringing in any additional workers if more than 75% of their workers are H-1B or L-1 employees.
New Visa on the Block
The bill creates a new visa for lower-skilled workers in the service sector, construction and agriculture. The program begins April 1, 2015 and would be initially capped at 20,000 and would rise to 75,000 by 2019.
The spouse and minor children of the W visa holder will be allowed to accompany or follow to join and will be given work authorization for the same period of admission as the principle visa holder.
Immigrants would apply at the U.S. embassies and consulates in their home countries and the visa would be valid for 3 years. If visa holders are unemployed for 60 days or more, they would be required to leave the United States. The workers must be paid the prevailing wage and cannot be employed in areas where unemployment is above 8.5%. Employers cannot fire American workers 90 days before or after the hiring of guest workers.
Agriculture Program Revised
A new agricultural guest worker visa program would also be established. A portable, at-will employment based visa (W-3 visa) and a contract based visa (W-2 visa) would replace the current H-2A program.
As many as 337,000 new three-year visas would be available for farm workers. After five years, an annual visa limit based on market conditions would be set.
The bill would allow current undocumented farm workers to obtain expedited legal status. Undocumented farm workers who “have made a substantial prior commitment to agricultural work in the U.S.,” show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine would be eligible to adjust to legal permanent resident status.
Spouses and minor children would receive derivative status.
Hearings have been scheduled before the Senate Judiciary Committee to review the bill and a committee vote is expected in May. The bill would then go on to the full Senate.