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**8/11/2008**

General Services Administration

Regulatory Secretariat

1800 F Street, NW

Room 4035

Washington DC 20405

**Re: Comments on Federal Acquisition Regulation; FAR Case 2007-013,
Employment Eligibility Notice of Proposed Rulemaking**

Dear FAR Secretariat:

These comments are submitted by Susquehanna Human Resource Management
Association in response to the Notice of Proposed Rulemaking on the
Federal Acquisition Regulation (FAR), issued on June 12, 2008 and
published in the *Federal Register*, Vol. 73, No. 114, Pages
33374-33381. The Notice of Proposed Rulemaking requested comment on
proposed changes to the Federal Acquisition Regulation (FAR) to require
government contractors and subcontractors to verify the work eligibility
of employees using the federal E-Verify system.

Susquehanna Human Resource Management Association is the leading human
resources association representing human resource professionals,
managers, and executives in the Snyder/Union county of Pennsylvania. Our
organization is affiliated with the Society for Human Resource
Management ("SHRM"), the world's largest association devoted to human
resource ("HR") management.

Our chapter has 175 individual members who are human resource
professionals. Our organization's members are employed in virtually all
industries and include federal contractors. Our members verify the work
eligibility of all employees, some as voluntary participants in the
E-Verify (formerly the "Basic Pilot") program.

**[Our Support of a Legal Workforce]{.underline}**

Operating on the front lines of workforce verification, our members are
committed to only hiring work-authorized individuals. The issue of
employment verification is part of how we manage our workforce on a
daily basis. We support the establishment of a federal electronic
employment verification system so long as it is accurate, reliable,
administratively easy to use, and is uniform and fairly enforced so that
it creates no new employer liabilities. We do not believe, however, that
the proposed rule moves the federal employment verification system in
that direction.

As discussed below, the proposed rule does not provide the level of
accuracy or administrative efficiency needed to ensure a legal
workforce. In addition, the proposed rule imposes unfair liabilities on
federal contractors and creates another piecemeal effort, rather than
strengthening the federal statutory preemption needed for a uniform
verification system.

For these reasons, we respectfully request that this regulation be
withdrawn.

**[Employers need an accurate and reliable employment verification
system]{.underline}**

First and foremost, employers need to be able to rely on the findings of
any electronic verification system they are mandated to use. The
proposed rule, however, is based on an expansion of the existing
E-Verify program; a program whose merits has been roundly disputed and
one that we believe is inadequate to meet the needs of the estimated
169,000 federal contractors and subcontractors who would be mandated to
use it.

E-Verify relies on information contained in the Social Security System
database. According to testimony before the U.S. Congress by the Social
Security Administration's own Office of the Inspector General, there is
a 4.1 percent error rate in the Social Security database. If all U.S.
employers with federal contracts were required to use the system, many
U.S. citizens and legal residents would be denied employment due to
bureaucratic errors. Moreover, the error rate for work-authorized
foreign nationals is estimated to be as high as 10 percent, thereby
opening the door to increased claims of discrimination based on national
origin.

This error rate is unacceptable - especially when it will impact the
ability of legal workers to obtain jobs. We should not place human
resource professionals and their employers in the middle - subjecting
them to penalties if they mistakenly hire an unauthorized worker while
exposing them to potential lawsuits if they deny employment to a legal
worker - all because of faulty government data and processes.

Second, E-Verify remains a paper-based system, not an entirely
electronic system. Our members are still required to complete the paper
Form I-9 after analyzing up to 25 different documents that an employee
can use for identity and work authorization purposes. It is only after
completing the Form I-9 that an employer enters data information into
E-Verify.

Third, because E-Verify remains a paper-based system, it is unable to
detect many forms of document fraud and identity theft. This leaves all
employers vulnerable to sanctions through no fault of their own. This is
because E-Verify does not verify the authenticity of the identity being
presented for employment purposes. It verifies only that the identity
presented matches information in the Social Security and Department of
Homeland Security databases.

Simply stated, E-Verify is unable to detect instances when an
unauthorized worker is using a stolen Social Security number, fake
certificate, or a fraudulently-obtained, but "legitimate" photo ID, to
bypass the system and gain employment. Even the E-Verify photo tool
cannot detect whether the document actually relates to the person
presenting it -- as a fraudulent photo could already be in the system.

The proliferation of false or stolen documents can and does cause
reputable employers to mistakenly hire individuals who are not eligible
to work. At the same time, the lack of certainty and the threat of
government-imposed penalties may lead some employers to delay or forego
hiring legal workers who are eligible for employment. In either case,
the costs are too high for both U.S. employers and legal workers to make
a mistake in a hiring decision.

The current employment verification system is in need of real reform.
Until such reforms are enacted, we strongly recommend that the federal
government refrain from mandating the use of E-Verify for federal
contractors and subcontractors or any subset of the workforce.

**[Compliance with this rule creates an expensive and unreasonable
burden on federal contract employers]{.underline}**

Our members hire hundreds of employees annually. Many have multiple
worksites. Each employer creates a unique process for recruiting, hiring
and bringing employees on board (including completion of the Form I-9)
based on their workplace hiring practices and personnel needs.

For employers who decide to participate in E-Verify, enrollment
typically includes a legal review of the Memorandum of Understanding
(MOU), changing the process flow for onboarding new employees and
documenting work authorization, developing new processes for handling
tentative nonconfirmations, and training staff. Employers generally, and
particularly larger employers, need multiple people trained to run the
E-Verify checks. Our members estimate 3 to 4 hours of time for one
person to register, understand the MOU, and take the tutorial. This time
commitment multiplies for each person who must become familiar with the
process. It does not include the time and costs associated with months
of planning required at a larger organization. In addition, for those
with multiple hiring sites, or where the E-Verify function is spread
across the country, the costs would need to be multiplied to account for
several staff members at each location, as well as training and
coordination of policies and practices across locations.

Should this regulation go forward, the timeframes for implementation
should be expanded. The agency underestimates the time required by an
employer to fully understand and comply with their obligations under
E-Verify. Any final rule should have at least a 120-day period between
publication and the effective date, and should provide a minimum of 90
days to re-verify existing employees.

The rule proposes to require an employer to enroll and verify all new
hires regardless of whether they are assigned to a federal contact. This
means that a business with thousands of employees would be required to
implement a costly new verification system across the country even if
only a small division of the company is involved in the performance of a
federal contract.

In addition, the rule proposes to require an employer to confirm the
employment eligibility of "all existing employees who are directly
engaged in the performance of work under the covered contract." The rule
requires employers to determine, within 30 days of entering into a
federal contract, which employees are assigned to the contract; which
have already been run through E-Verify as new hires; which have already
been run through E-Verify because of their work on another contract; and
which remaining employees need to be contacted and told to bring
appropriate evidence of identity and work authorization in order to be
run through E-Verify.

Preliminary reports from Arizona which, under state law, mandated the
use of E-Verify by all employers as of January 1, 2008, suggest that
some employers are improperly using E-Verify to re-verify existing
employees---whether on a uniform or selective basis. This violates the
existing E-Verify MOU between an employer and the federal government and
has led to charges of discrimination being filed with the Office of
Special Counsel for Unfair Immigration-related Employment Practices. The
proposed rule's complexity will create further confusion about
re-verification and open the door to more discriminatory practices.

**[Employers need fair enforcement and a uniform system that creates no
new liabilities]{.underline}**

The mandatory nature of this regulation and the expansion of E-Verify to
existing employees conflicts with the federal statute and is, therefore,
an unauthorized expansion of federal regulatory authority.

A fair system is a uniform system which provides employers the assurance
that once they comply, they will not be at risk of lawsuit or
enforcement action. This principle of uniformity was also a centerpiece
of Congressional intent in enacting a uniform national employment
verification law enacted over twenty years ago.

The Immigration Reform and Control Act of 1986 (IRCA) requires all U.S.
employers to verify the work authorization of all employees hired on or
after November 7, 1986. All employers must comply with this law by
completing Form I-9 for each and every *new hire*. Congress specifically
pre-empted state and local laws imposing civil or criminal sanctions
upon those who hired undocumented workers and established strict
procedures by which the Administration must notify Congress of proposed
changes to the system. At the same time, IRCA carefully balanced the
employer's obligation to verify work authorization with the U.S.
workers' rights to work and to be free from discriminatory inquiries
into their work authorization status.

In 1996 Congress established three *voluntary* pilot programs to test
alternate methodologies for employment verification. One of those
programs, initially known as "Basic Pilot," subsequently became
E-Verify. This comprehensive national scheme established by Congress has
been disrupted in the past several years by a variety of state laws
requiring some or all employers to participate in E-Verify, to complete
additional verification paperwork, or to otherwise take measures to
ensure the legal status of their workforce. Employers with operations in
multiple jurisdictions are struggling to keep abreast of these
conflicting state and federal mandates.

This proposed regulation further deviates from Congressional intent. As
noted above, the proposed regulation is in direct conflict with the
statutory requirement that E-Verify be a [voluntary pilot
program]{.underline} to verify the employment eligibility of [new
hires]{.underline}. This interpretation is borne out in the current
E-Verify MOU that explicitly prohibits reverification of current
employees. In fact, United States Citizenship and Immigration Services
(USCIS) has publicly stated that it would discipline employers who have
used E-Verify for this purpose. Various bills introduced in state
legislatures would have required reverification but these provisions
were rejected specifically because of the federal statute and MOU.
Allowing the Federal government to require re-verification opens the
door to states imposing similar requirements.

Lastly, the proposed rule states that the Contractor "shall flow down
the requirement" to use E-Verify to subcontractors. This has been an
area of great discussion during the debates over comprehensive
immigration reform in the Congress. Our members strongly believe that
employers should be held accountable for their own hiring decisions and
not those of their contractors or subcontractors.

**[Conclusion]{.underline}**

We appreciate the opportunity to comment on this proposed rule based on
our first-hand experience regarding employment verification. Our members
believe that requiring federal contractors and subcontractors to use
E-Verify for all new and selected existing employees would only serve to
complicate efforts for real employment verification reform. Rather than
expanding existing inadequate systems to more subsets of employers, our
members would respectfully request that government efforts be focused on
creating an employment verification system that incorporates the
principles of accuracy and reliability, administrative efficiency, and
fair and uniform application.

On behalf of the members of our organization, we appreciate your
consideration of our comments and respectfully suggest that this
proposed rulemaking be rescinded.

Respectfully submitted,

**Michael Worrell**

**President Elect**

**Susquehanna Human Resource Management Association**