**Intel Corporation**

Human Resources Legal Department

Mail Stop RNB4-126

2200 Mission College Blvd.

Santa Clara, CA 95054

408-765-4756

408-765-6287 -- fax

![](media/image1.jpeg){width="1.125in" height="0.7708333333333334in"}

August 8, 2008

**Via FedEx**

Regulatory Secretariat (VPR)

General Services Administration

1800 F Street, N.W.

Room 4035

Washington, D.C. 20405

Attn: Ms. Duarte and Regulatory Secretariat:

> **RE: FAR Case 2007-013: Comments on Proposed Employment Eligibility
> Regulations Implementing Executive Order 12989 (as amended), 73
> Federal Register 33374 (June 12, 2008)**

Dear Ms. Duarte and Regulatory Secretariat:

Intel Corporation welcomes this opportunity to comment on the proposed
regulations published jointly by the General Services Administration,
Department of Defense and NASA. Please note that Intel is a member of
the American Council on International Personnel and joins in its
comments to the proposed regulations, submitted under separate cover. In
these additional, individual comments, Intel explains why the regulatory
proposal to require verification of its current employees connected to
government contracts or subcontracts is unworkable, unnecessary and
costly. Intel respectfully requests that the government withdraw or
substantially alter this requirement.

Intel, headquartered in Santa Clara, California, is one of the world's
leading technology companies and among the nation's largest employers,
with a domestic workforce exceeding 46,000. Intel designs, manufactures
and markets microcomputer components and related products, including
microprocessors, microcontrollers, memory chips, computer modules,
motherboards, network and communication hardware and software products,
personal conferencing software, and parallel supercomputers. Intel is
the global leader in the semiconductor industry. Intel developed the
semiconductor technology on which the entire personal computer industry
has been built, and our products have continually revolutionized the
industry and redefined the role of the computer in our everyday lives.

Intel has participated in the Government's E-Verify program since
January 1, 2008. Our E-Verify participation was initially limited to our
hiring sites in Arizona, in order to comply with an Arizona state law
that mandates E-Verify participation. Over the last few months, we have
expanded participation to all hiring sites nationwide in order to take
advantage of the recently-promulgated regulations that allow for
extension of Optional Practical Training work authorization for
graduates in the Sciences, Technology, Engineering and Mathematics, to
enable us to hire that talent throughout the country.

So far this year, Intel has initiated nearly 1400 new hire queries
through E-Verify, and we anticipate that going forward, new hire queries
will approximate 3000 a year. Intel's E-Verify "tentative
non-confirmation rate" ("TNC") far exceeds the estimated rate of
non-confirmations published by E-Verify and USCIS. Although USCIS claims
that "\[l\]ess than one percent of all work-authorized employees receive
a tentative non-confirmation through E-Verify" (statement of USCIS
Acting Director Jonathan Scharfen, USCIS press release, May 5, 2008),
Intel's actual experience is a TNC rate of a stunning 12.21% for the
year to date (143 of 1363 inquiries). ***All of Intel's TNC's have
ultimately been cleared by E-Verify as work authorized, but only after
significant investment of time and money, lost productivity and, for our
affected foreign national staff, many hours of confusion, worry and
upset.***

Intel currently manages its own payroll processes. Quarterly, under
Intel's payroll protocol, it uploads data to the on-line Social Security
Number Verification System ("SSNVS") to ensure proper wage reporting. In
the rare instance when SSNVS reports a no-match, Intel finds the source
of the error and immediately corrects it. This practice is so successful
that since Intel adopted this protocol approximately four years ago, the
Social Security Administration has not had to send any annual employer
correction "no-match notices" to Intel.

I.  **Intel Has No Practical Means to Identify Current Employees with
    Government Contract or Sub-Contract Responsibilities and thus Will
    Be Forced to Run E-Verify Queries for Many of Its 46,000 U.S.
    Employees.**

The proposed regulations expand E-Verify to include verification for all
employees assigned to a covered contract, not just those newly hired.
The definition of "assigned employee" is any employee "directly
performing work, in the United States, under a \[covered\] contract."
(Section 52.222-XX (a) (1).) This definition does not provide helpful
guidance to Intel, whose tens of thousands of U.S. employees are engaged
in various research and development work that support Intel's business,
including a variety of government contracts and sub-contracts. The end
product under its government contracts is often a new technology,
developed through trial and error over a lengthy research, test and
implementation cycle. Typically, Intel employees are working on
technologies that have a number of applications, and are rarely solely
devoted to a single project or contract. Thus, thousands of employees
may "directly" touch upon the work that leads to a covered contract
deliverable. Moreover, employees are regularly re-assigned based on
business needs and competing priorities. Management of work assignments
is delegated to technical managers who, as a practical matter, are not
able to sort out which job or research assignments may have a direct
impact on a covered contract. For an employer engaged in this type of
work, the limitation that only "direct assignees" require verification
is illusory. Intel is just too big and too dispersed to be able to
manage this "in and out" requirement for current employees.

What then will Intel do in order to comply with the regulatory
requirement as now drafted, requiring a contractor to run E-Verify for
current employees engaged on the contract? It will construe the
regulation broadly, to ensure government contract compliance, and will
thus need to run a substantial number of its 46,000 U.S. employees
through the system. It will also impose a similar broad reading on any
covered subcontractor, for the same reasons. This result would impose a
substantial expense on Intel as well as a corresponding surge of
E-Verify activity, imposing a significant strain on the system.[^1]

Intel's E-Verify experience demonstrates that each TNC requires at least
30 minutes in direct consultation with the affected employee, as well as
E-Verify or other government agents, to resolve. Were Intel's nearly 13%
TNC rate for new hires extrapolated to its existing workforce,
experience would predict a need for thousands of additional
personnel-hours to manage the additional TNC's. Of course, the resource
demand will be far greater on the government side, as Intel is but one
of many government contractors with similarly complex work assignment
issues.

Imposition of such a labor intensive exercise might be warranted if the
results were predicted to identify undocumented aliens working on
government projects. But that is not the case at Intel---where the
Company has not had a sustained FNC and has not had a no- match notice
from SSA in years. This rule will simply add costs to government
contracts and sub-contracts, which will ultimately lead to increases in
contract pricing---defeating the very efficiencies this rule purportedly
advances.

Intel respectfully submits that the cost of verifying current employees
far outweighs any benefit to the procurement process. Accordingly, it
suggests the following alternatives to the requirement that current
employees be subject to E-Verify:

1.  Eliminate the E-Verify mandate for current employees and impose a
    discretionary standard, whereby the contracting agency could require
    a contractor to run its existing employees through E-Verify if the
    contractor had been charged with I-9 violations or had a record of
    unresolved Social Security no-match notices. Intel recognizes that
    the Privacy Act prohibits the Social Security Administration from
    sharing no-match correspondence with contracting agencies, and
    further recognizes that a no-match notice alone is not evidence that
    the bearer of the mismatched Social Security Number lacks work
    authorization. But the Government could use its procurement
    authority to require contractors either to certify that their no
    match record was within acceptable bounds or to run specified
    current employees through E-Verify. Such a change would exempt Intel
    and likeminded compliant employers from the wholly futile, but
    inordinately expensive, exercise of running E-Verify queries for the
    majority of their workforces.

2.  If the proposed current employee verification system is to remain a
    part of these regulations, provide an option for employers in the
    regulations so that they can adopt a compliance method that meets
    Government objectives with the least disruption or cost to
    contractor operations. Examples include allowing an employer to
    E-Verify all employees at all hiring sites, all employees at any
    hiring site that services a covered contract, or only those
    employees assigned to work on the government contract.

3.  Modify the definition of "assigned employee" to make clear that the
    covered employees are only those assigned on a continuing basis to
    work predominately on that particular contract. Intel suggests a
    standard of 60% or more of such the employee's working hours,
    calculated on an annual basis, with the obligation accruing only
    after the standard is achieved.

> **II. The Time to Conduct E-Verify Queries for Current Staff Must Be
> Extended**

The proposed regulations require covered contractors, within the longer
of 30 days after required enrollment in E-Verify (in turn required
within 30 days of the effective date of a covered contract) or three
days after the employee is assigned to "work directly on the contract"
to verify all such assigned employees through the E-Verify system. See
Section 52.222-XX (a)(1) definition of "assigned employee" and (d)(2).
This requirement is problematic for at least two reasons. First, it
fails to contemplate the timetable for an employer which, like Intel, is
already enrolled in E-Verify. At a minimum, the regulation should be
clarified so that for employers already enrolled, the time for
verification of existing employees is at least 30 days (or longer, as
suggested below) from the execution of a covered contract.

Second, and more problematic, the 30-day time period is not nearly
enough time to accomplish the tasks necessary to conduct E-Verify
queries of current staff. Intel thus requests that the Government
consider enlarging the time to 90 days. Consider, as discussed in the
preceding section, the complexity of government contract services at
employers like Intel. These companies must either (a) scrub data about
their workforces to identify those employees assigned to work on a
covered agreement and implement a plan to run those employees through
E-Verify, including managing the burdensome TNC process or (b) they must
enlarge the pool of affected employees, eliminating the need to figure
out who is in an who is out, but multiplying exponentially the time
required to conduct the verification.

In this context, it is important to underscore that submission of an
E-Verify query for an existing employee will not be a one-step data
entry task as is the case for new employees under existing E-Verify
rules. E-Verify rules for new employee queries track the I-9 process,
but add obligations not historically part of that process. E-Verify
requires the employee to provide a social security number, a picture
identification document and limited number of current identity or work
authorization documents. For employees whose I-9's were completed long
ago, Intel accepted documents to demonstrate identity (drivers'
licenses) or work authorization (passports or green cards) that have now
expired. In order to E-Verify these employees, Intel will first have to
"re-verify" their identify and work authorization. The task will be
lengthy and complex. For example, many Intel employees presented
permanent residence cards, cards that have long since expired. In order
to conduct E-Verify queries successfully for these employees, Intel will
need to sort its I-9's, identify expired documents, meet with affected
employees and obtain new documents (even if the documents they
originally presented showed unconditional ongoing work authorization.)
Similar steps will be required for certain naturalized citizens. Until
2007, it was permissible for naturalized U.S. citizens to present
certificates of naturalization to prove work eligibility, and many Intel
employees, proud of their new American citizenship, chose to use these
forms in the I-9 process. Because those certificates are not now
recognized as part of the E-Verify process, Intel will need to re-verify
all such employees before submitting an E-Verify query. Additionally,
the I-9 process does not require an employee to provide a social
security number, but E-Verify requires the employee to provide his/her
number, and Intel will have to devise a process to collect and
authenticate social security numbers for many employees, especially
those who started as foreign national legal immigrants, who were not
required to have a number when they started work. Simply stated, it is
inconceivable that a Company like Intel could undertake such an enormous
effort in the 30 days' time allotted by the proposed rule to accomplish
these tasks for tens of thousands (or even 1000) employees.[^2]

It is noteworthy that the DHS social security no-match regulations
adopted by DHS in August 2007 provide 30 days for the employer to
provide notice of a no-match to an

affected employee, and then provide the employee another 60 days
thereafter to correct the Social Security records. These timelines more
accurately reflect the minimum time that is required to resolve TNC
issues. At a minimum, the 90-day framework of the DHS no-match
regulations should be adopted here.

III. **Because It Is Not Clear that the Broad Legal Immunities Extended
     to Employers Participating in Basic Pilot Programs Extend to
     Verification of Existing Employees, the Government Should Not
     Impose this Obligation on Contractors**

E-Verify is still a voluntary demonstration program, authorized by
Congress in the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRAIRA in 1996 as the "Basic Pilot Program (Public Law 104-208,
110 Stat.3009-655 through 665 (1996), extended through October 2008 by
2002 amendments (Public Law 107-128, 115 Stat.2407 (2002)),
re-christened "E-Verify" in 2007. The specifications for the program are
limited by statute to verification of new hires in connection with the
I-9 process. ( ***See*** Section 402 (c), scope of employer's election
to participate in the pilot limited to new hires and certain
recruitments for a fee, ***and*** Section 403 (a)\-- pilot process is
directly linked to I-9 process for new employees, including recording
verification transaction on the I-9 form, and establishes E-Verify
timelines and processes based directly on I-9 new hire rules.)

The express limitation of the E-Verify program to the new hire process
is of keen interest to Intel as it contemplates implementation of
E-Verify for existing employees. In voluntarily agreeing to participate
in E-Verify for new hires throughout its U.S. operations, Intel was
encouraged by the broad immunity language that Congress included in the
basic pilot authorization. As a result, it need not worry about
litigation from employees whose employment might be severed because of a
Final Non-Confirmation Notice, because "\[n\]o person or entity
participating in a pilot program \[authorized by IIRAIRA\] shall be
civilly or criminally liable under any law for any action taken in good
faith reliance on information provided through the confirmation system
\[of the basic pilot program.\]" (IIRAIRA Section 403(d)) Because
IIRAIRA did not contemplate use of the pilot program for existing
employees, however, this immunity language appears not to apply to
adverse decisions employers make based on ***post-hire*** E-Verify
queries. It is predictable that work-authorized, long-term employees
with facially valid I-9 documents, fired as a result of the E-Verify
process, will claim that the immunity language does not bar their
discrimination or wrongful discharge cases where the E-Verify process
provided the wrong answer.

Intel emphasizes that E-Verify does in fact provide the wrong
answer---not only in rendering countless unnecessary TNC's, but in
issuing Final Non-Confirmation notices. As described above, through June
30, 2008, Intel's TNC rate is over 12%. The majority of these TNC's have
come from Intel's work-authorized foreign national staff, many of whom
hold work authorization provided by the State Department (DS 2019) or by
their colleges or universities (CPT I-20 from SEVIS). E-Verify has yet
to recognize these forms of work authorization automatically and the
manual process for checking these individuals' work authorization is not
seamless. But far more troubling from an employment law perspective are
final non-confirmation notices issued to work authorized employees. For
these employees, the E-Verify MOU contemplates that the employer will
discharge the employee. In its short experience with E-Verify, Intel has
had a TNC converted to Final Non-Confirmation notice for a U.S. citizen
who held a U.S. passport and District of Columbia birth certificate,
because her Social Security record erroneously reflected foreign birth.
She visited her local Social Security office ***three*** times during
the TNC process, and each time returned to work with an SSA notice
confirming that her name and number matched, but this was to no avail in
E-Verify, as SSA did not appreciate the need to correct its data error.
It was only after the FNC was issued, and after hours of phone work by
Intel representatives, that E-Verify staff identified the error and
directed correction of the Social Security records, thereby reversing
the FNC.

E-Verify also issued an FNC to a foreign student with Optional Practical
Training employment authorization because USCIS put the wrong validity
dates on the employee's Employment Authorization Document and confirmed
an E-Verify FNC when the employee refused to pay an additional \$340
filing fee to have the government correct its own error. Despite USCIS
records showing the employee had both a valid I-20 and an I-797 approval
notice for the correct OPT dates, E-Verify said she was not work
authorized. Again, only because Intel representatives persisted was that
situation reversed and the employee's employment continued.[^3]

Some might look at these situations and conclude that two mistaken final
non-confirmation notices out of Intel's nearly 1400 E-Verify inquiries
is an acceptable error rate of "just" 1.4%. But how many mistakes does
1.4 % represent among the 3.8 million employees who will be vetted
through the E-Verify system under the current estimates for the proposed
rule? Assuming the number of employees estimated by the Government in
connection with the proposed rule is correct (and the Intel experience
suggests that it is low), the result would be 53,200 mistaken Final
Non-Confirmations, and 53,200 possible legal claims by work-authorized
employees who had fully and lawfully complied with the I-9 process.

The proposed regulations lead to the conclusion that unwarranted
termination of thousands of work authorized Americans and legal
immigrants is a worthy price to pay if undocumented aliens are washed
out of the workforce at the same time. But this conclusion ignores that
the expansion of E-Verify under this rule will catch employers and
work-authorized employees in an awful dilemma. Employers will be forced
to choose between continuing to employ suspect employees, risking an ICE
referral and investigation for civil or criminal charges on the one
hand, versus the risk of Office of Special Council investigations,
employment law claims and loss of valuable trained personnel on the
other. Intel thus recommends:

(1) That the regulations be clarified explicitly to extend immunity for
    any contractor who takes adverse action against a current employee.
    If there is no statutory basis for such immunity, then it is
    premature to impose the E-verify burden on employers to query
    current employees. It makes no sense that employers would have
    complete statutory immunity for actions taken against new hires as a
    result of E-Verify but would be fully at risk of liability for
    current employee claims.

(2) That the requirement to query current employees be delayed until
    E-Verify adopts processes for a post-FNC process, initiated by
    either the employee or the employer, so that performance of
    government contracts is not hampered by the unnecessary termination
    of work authorized employees.

Thank you for your consideration. Intel would be happy to discuss these
points in further detail or address your questions about its submission.
Please direct inquiries to the undersigned.

Sincerely,

Margie Jones

U.S. Immigration Operations Manager

[^1]: Note that Intel appreciates that the E-Verify system is robust
    with capacity, reportedly sufficient to handle millions of
    simultaneous queries. The robustness of the E-Verify technology,
    however, is beside the point. There are most assuredly capacity
    concerns with the E-Verify program, but they manifest only when the
    employer or employee must deal with a human being in the TNC or FNC
    context in order to rectify the situation. Intel's 2008 experience
    with hundreds of TNC's, requiring hours of phone consultation with
    E-Verify, Social Security Administration and USCIS personnel, is
    most sobering.

[^2]: There are also substantial legal concerns with a process that
    requires re-verification of valid I-9 documentation and E-Verify
    queries outside the scope of the IIRAIRA basic pilot authorization
    for new hires, as discussed in Section III below. It is far from
    certain that the broad civil and criminal immunity for participation
    in good faith in the programs specifically authorized by Congress,
    Public Law 104-108, Section 403(d), pertain to verification queries
    that are both impermissible under IRCA regulations and beyond the
    scope of permissible participation in E-Verify under IIRAIRA.

[^3]: In both cases, E-Verify representatives congratulated Intel for
    its persistence and acknowledged that many employers would have
    simply terminated the employee as contemplated by the E-Verify MOU.