President Obama has signed into law the Fiscal Year 2010 Homeland Security Appropriations Act (H.R. 2892). The legislation extends the following immigration programs for three years:

• E-Verify;
• The employment-based fifth preference (EB-5) permanent residence subcategory for foreign nationals who invest in designated regional centers;
• The Conrad 30 program for foreign national physicians working in underserved areas of the United States; and
• The employment-based fourth preference (EB-4) permanent residence subcategory for non-minister religious workers.

The extended programs were originally to expire on September 30, but were accorded a 30-day temporary stopgap while federal legislators worked to reconcile the Senate and House versions of the appropriations bill. Earlier versions of the bill would have permanently extended the E-Verify program and would have required all federal contractors, without exception, to use E-Verify. These proposals were ultimately removed from the final bill, which Congress passed last week.

In addition to the immigration program extensions, the Act contains an important new provision that protects the pending permanent residence petitions of surviving spouses and other relatives whose immigration sponsors die during the application process. The Act also provides funding for Department of Homeland Security agencies and programs, including additional funding for the operation and improvement of E-Verify, increased appropriations to Immigration and Customs Enforcement for worksite enforcement and employer immigration compliance auditing, and funding for border security measures.

The E-Verify Extension: Impact on Employers

The E-Verify program was originally scheduled to expire in November 2008. For nearly a year, Congress passed brief extensions of E-Verify while it grappled with a longer-term reauthorization of the program, leaving the future of the program uncertain. Now, with the three-year extension, the Department of Homeland Security could continue its efforts to require more employers to use E-Verify, which was previously a largely voluntary system.

Over the last two years, DHS has introduced E-Verify requirements aimed at specific employer groups. In 2008, the agency imposed the first federal E-Verify mandate on employers seeking to employ foreign students who have received extensions of their post-completion optional practical training (OPT) on the basis of a degree in a science, technology, engineering or mathematics (STEM) field. Last month, a much broader E-Verify mandate was implemented for certain federal contractors. Additional focused E-Verify requirements could be introduced now that the verification program has been extended for the near term.

Looking further ahead, it is not yet clear whether E-Verify will become a central part of the comprehensive immigration reform legislation that is expected in 2010. Though the reform package is expected to include provisions for an electronic employment eligibility verification system, it is not certain that E-Verify will be the designated program. In past efforts at comprehensive reform, alternatives to E-Verify, such as a biometric verification system or a system keyed to state employment databases, have been suggested, and could be offered in the coming immigration debate.

Source: Fragomen