Employment Law Chronicle for Virginia & the District of Columbia

This week, the U.S. Department of Homeland Security (DHS) launched "E-Verify Self-Check," which allows employees in select states, including Virginia and the District of Columbia, to check their employment eligibility status before seeking work. Potential employees may also correct errors that may undermine employment opportunities. According to the press release, Self-Check will be expanded to additional states on a rolling basis.

Employers in Virginia, the District of Columbia and throughout the nation should take note of the Obama Administration's increasing focus on companies who employ undocumented workers. As summarized in this Business Week article, the Government has launched a new round of worksite investigations and notified 1,000 companies that their I-9s are being audited.

Employers should take the enforcement initiatives seriously particularly in light of the increasing number of employers who are being arrested for violations of immigration laws and the substantial increases in fines in recent years.

By way of background, E-Verify is an internet-based system operated by the Department of Homeland Security (DHS) that allows employers to verify their employees' work eligibility. E-Verify aims to ensure that federal government contractors do not hire unauthorized immigrant workers. The E-Verify system cross checks information from the I-9 (Employment Eligibility Verification Form) used by employers with immigration and social security databases.

After considerable delay, beginning on September 8, 2009, most federal government contract solicitations and federal government contract awards will include a clause requiring federal government contractors to use E-Verify. Government contractors will have 30 days from the contract date to enroll in E-Verify.

As a practical matter, federal government contractors and subcontractors in Virginia, the District of Columbia, and nationwide should begin taking steps now for a smooth transition to the E-Verify system. DHS'
frequently asked questions and answers about the E-Verify system is a good place to begin getting up to speed.

As part of The Employment Law Chronicle's ongoing effort to chronicle workplace laws affecting employers in Virginia and the District of Columbia, please take note that Virginia Code Section 40.1-11.1, entitled "Employment of illegal immigrants," sanctions referral or employment of individuals who cannot document their eligibility to work in the United States, providing in part:

It shall be unlawful and constitute a Class 1 misdemeanor for any employer or any person acting as an agent for an employer, or any person who, for a fee, refers an alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States for employment to an employer, or an officer, agent or representative of a labor organization to knowingly employ, continue to employ, or refer for employment any alien who cannot provide documents indicating that he or she is legally eligible for employment in the United States.

While the law does not require an employer to use an employment application, an employer who chooses to use an employment application must ask prospective employees if they are legally eligible to work in the United States.

To view the complete text of this statute, follow links to the Code of Virginia at this site.