January 5, 2009
Late December, a coalition of special interest groups filed a lawsuit to block a final rule that would require most federal contractors and subcontractors to use the E-Verify system to verify their employees’ eligibility to legally work in the United States. The complaint was filed in U.S. District Court for the Southern District of Maryland by the U.S. Chamber of Commerce; Associated Builders and Contractors, Inc.; the Society for Human Resource Management; the American Council on International Personnel; and the HR Policy Association.

The parties are seeking declaratory and injunctive relief to prevent the final rule from taking effect on its targeted implementation date of January 15, 2009. (Chamber of Commerce of the United States of America (COCUSA), et al. v. Chertoff, et al., December 23, 2008) 

The challenged rule implements Executive Order 13,456, which was signed by President Bush on June 6, 2008 and requires federal contractors to use an electronic employment eligibility verification system to verify the work authorization status of their employees. (Executive Order: Amending Executive Order 12989, as Amended, June 9, 2008) The Order also required Department of Homeland Security Secretary Michael Chertoff to choose the system to be used. (Id.) On June 9, Chertoff designated E-Verify as the system to be used by federal contractors under the Executive Order. (Remarks by Homeland Security Secretary Michael Chertoff at the State of Immigration Address, June 9, 2008) The final rule implementing the Executive Order was issued mid-November. (USCIS News Release, November 13, 2008), (Federal Acquisition Regulation; FAR Case 2007-013, Employment Eligibility Verification)

The lawsuit -filed on December 23, 2008- claims that the rule is unlawful because it allegedly violates the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The plaintiffs argue that Homeland Security Secretary Chertoff violated Section 402(a) of IIRIRA, which states that “the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program [of employment eligibility confirmation].” In designating E-Verify as the electronic employment eligibility verification system to be used by federal contractors, the plaintiffs allege Chertoff violated this statutory prohibition. (COCUSA, et al. v. Chertoff, et al., December 23, 2008)

Upon publication of the final rule, however, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council addressed these arguments (raised in comments to the proposed rule) and explained how the rule is lawful. According to the Councils, Section 402(a) of IIRIRA applies “only to the Secretary of Homeland Security and does not apply to [President Bush] or the Councils.” Since Secretary Chertoff merely designated E-Verify as the system to be used and did not impose the actual requirement that federal contractors use E-Verify, the final rule is lawful. Furthermore, the Councils point out that the final rule is legal because it does not actually require any person or entity to use E-Verify since employers are not required to be government contractors or subcontractors. (Id.)

The complaint also contains several other allegations aimed at blocking the final rule’s implementation, including claims that the recently issued regulations violate regulatory procedures, federal procurement law, and a statutory prohibition against re-verifying the work authorization status of existing employees. (COCUSA, et al. v. Chertoff, et al., December 23, 2008)

Stay tuned to FAIR for more updates on this litigation…

Homeland Security Report Indicates Possible Immigration-Related Terrorist Threats

In an article posted Christmas Day, the Associated Press reports that a new 38-page intelligence assessment by Homeland Security indicates that the greatest terror threat over the next five years will result from instability in the Middle East and Africa, “persistent challenges to border security” and increasing manipulation of the internet. (ABC News, December 25, 2008)

With respect to border security, the Associated Press reports that terrorists “will continue to try to evade U.S. border security measures and place operatives inside the mainland to carry out attacks.” For example, terrorists may pose “as refugees or asylum seekers or try to exploit foreign travel channels such as the visa waiver program.” (For more information on the expansion of the Visa Waiver Program, see Legislative Update, October 27, 2008)  Finally, the security report notes that long waits for legal immigration and limits on the refugee/asylum program combined with more restrictive policies in Europe may encourage more illegal immigration to the U.S. (ABC News, December 25, 2008)

Obama to Nominate Amnesty Supporter Solis to Head Labor Department

President-elect Barack Obama announced last month that he plans to nominate Congresswoman Hilda Solis (D-CA) to fill the position of Secretary of Labor in his administration. The Department of Labor is charged with “[promoting] the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment…[and] helping employers find workers.” (DOL Frequently Asked Questions) The Labor Department also takes a lead role in regulating and enforcing regulations relating to our guest worker programs. Thus, Ms. Solis, if approved by the Senate, will play a crucial role in the Obama Administration’s plan to stimulate the economy and create jobs. (Associated Press, December 18, 2008)

As a Member of Congress, Solis’ position on immigration policy is well-documented:

  • In the 110th Congress, Solis cosponsored H.R.1221, the American DREAM Act. This bill sought to grant amnesty to illegal alien high school graduates and college enrollees who entered the United States before their sixteenth birthday and had lived in the country for at least five years. H.R.1221 also would have made such aliens eligible for higher education benefits (such as in-state tuition) based on state residence. (See Congressional Research Service Summary)
  • On her congressional website, Solis bills herself as “a strong supporter and original co-sponsor” of the AgJOBS bill, H.R.371. (See  Immigration Issues Page) Had this legislation passed, many illegal aliens who had been unlawfully employed in agriculture during the two year period ending December 31, 2006 would have been granted amnesty. AgJOBS also sought to replace the current H-2A temporary agricultural guest worker program with a revised scheme that would have made it easier for employers to bring foreign workers into the country. (See Congressional Research Service Summary
  • In 2007, Solis cosponsored H.R.1645, the STRIVE Act. This legislation was billed as “comprehensive immigration reform,” and incorporated the AgJOBS and DREAM Act bills. The STRIVE Act also would have created a new H-2C guest worker visa category, which would have annually added 400,000 to 600,000 new foreign guest workers to the U.S. job market. These guest workers would have eventually been permitted to apply for permanent residency. (See Congressional Research Service Summary)
  • In 2005, Solis voted against, H.R. 418, the REAL ID Act. (See Roll Call Vote Results)  This bill, which eventually became law, was intended to improve document security, in part by requiring driver’s license applicants to establish legal presence. (See Congressional Research Service Summary)
  • According to her website, Solis has supported several provisions aimed at strengthening border security and improving enforcement of immigration laws. She “voted for funding to hire 17,800 additional border patrol officers and provide for an additional 28,450 detention beds,” and “strongly support[s] efforts to increase funds for the State Criminal Alien Assistance Program (SCAAP), which provides partial reimbursement to states and localities for the costs associated with the detention and incarceration of undocumented criminal aliens.” (See Congresswoman Hilda L. Solis’ Immigration Issues Page)

The Senate Health, Education, Labor, and Pension Committee, chaired by Senator Ted Kennedy (D-MA), will hold a confirmation hearing for Solis on Friday, January 9, 2009 at 9:30 AM. (MSNBC, December 31, 2008)

Company Agrees to $20.7 Million Settlement for Immigration Law Violations

IFCO Systems North America, a pallet and crate company based in Houston, Texas, agreed last month to pay the largest settlement ever resulting from a worksite enforcement operation. IFCO will pay a historic $20.7 million in fines and overtime violations to settle a lawsuit stemming from 2006 immigration law enforcement operations at 45 of its worksites. (CNN, December 19, 2008) A government investigation revealed several IFCO managers and employees harbored and transported illegal aliens and encouraged and induced them to remain in the United States. (ICE News Release)

United States Attorney Andrew Baxter described IFCO’s violations of immigration and employment laws as “serious,” noting that IFCO administrative personnel ignored a total of 13 letters-dating back to at least the year 2000 – from the Social Security Administration (SSA) and notifying the company of the Social Security number irregularities. (ICE News Release)

The investigation of IFCO began in February 2005 when Immigration and Customs Enforcement (ICE) received a tip that illegal alien workers at the Albany IFCO plants were observed ripping up their W-2 forms. In April 2006, ICE conducted an enforcement operation at multiple IFCO plants, arrested over 1,100 aliens, and charged several IFCO managers for using “as a business model the systematic violation of United States law.” (CNN, December 19, 2008) Officials estimate that as many as 6,000 illegal aliens worked for the company between 2003 and 2006. As of December 19, 2008, nine managers and employees have pleaded guilty to criminal charges, while four managers are pending trial on felony charges. (ICE News Release)

The settlement agreement also includes a “precedent-setting” compliance and reporting program that seeks to prevent the employment of illegal aliens by IFCO in the future. (Id.) This program will require IFCO to check the work authorization status of all of its new hires with E-Verify, and the company will also verify the Social Security numbers of all of its employees with SSA. IFCO will also maintain an employee hotline that will receive reports of any suspected law violations at the company.

The agreement runs through 2012, at which point – if the company has fully complied with the agreement’s terms and conditions – the U.S. Attorney’s Office will drop the criminal charges against the company. The settlement only concerns the liability of the company and does not address any pending or possible future criminal charges against individuals. (Id.)