Many Federal Contractors and Subcontractors Required to Use E-verify Program After January 15, 2009.

[Be advised that this summary was updated on January 12, 2009]

Last month, the federal government published its final regulation which will require many federal contractors and subcontractors to begin using the e-verify program to confirm the employment eligibility of many existing and newly-hired employees as federal service and construction contracts and solicitations are issued or amended after January 15, 2009. In other words, federal agencies are directed to insert a new clause into procurement contracts and solicitations requiring contractors and subcontractors to enroll and utilize the e-verify program. This regulation implements Executive Order 12989 which was amended in June 2008. E-verify was formally known Basic Pilot/Employment Eligibility Verification Program and is operated by the Department of Homeland Security and the U.S. Citizenship and Immigration Service in partnership with the Social Security Administration. “Information on registration for and use of the e-verify program can be obtained via the internet at the Department of Homeland Security web site: http://www.dhs.gov/e-verify.”

Not All Contracts Affected. The clause need not be included in all federal contracts (and does not include, for example, commercially off-the-shelf goods, contracts which do not exceed the simplified acquisition threshold, are only for work outside the United States, are for performance periods of less than 120 days, etc.). Department Heads may waive the e-verify requirements.

Employees Necessarily Affected. If the contractor is affected, all new hires and those current employees (hired after November 6, 1986) who are assigned to the subject federal contract are required to be checked with the e-verify program. However, contractors have the option of verifying the employment eligibility of all existing employees (hired after November 6, 1986) instead of merely those assigned to the contract in case there is difficulty determining which employees are performing such work. In that event, the verification should be implemented within 180 calendar days of enrollment in the e-verify program or of when notification is given to the e-verify operations of the decision to exercise this option.

Not All Employees Necessarily Affected. Instead of verifying the employment eligibility of all new employees, certain employers (i.e., colleges, state and local governments, etc.) may elect to only verify the employment eligibility of new and current employees who are assigned to the federal contract. Contractors are also not required to verify the employment eligibility of current employees (i) who hold an active security clearance of confidential, secret or top secret, (ii) who have been issued HSPD-12 credentials by the Department of Homeland Security; or (iii) whose work normally performs support work (such as indirect or overhead functions) and does not perform any substantial duties applicable to the contract.

Duties. If they have not already enrolled in e-verify, affected employers are required to enroll “as a Federal Contractor in the E-Verify program within 30 calendar days of the contract award . . . Within 90 calendar days of enrollment in the E-Verify program, [the employer must] begin to use E-Verify to initiate verification of employment eligibility of all new hires . . . . who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire . . . . For each employee assigned to the contract, [the employer must] initiate verification within 90 calendar days after date of enrollment or within 30 calendar days of the employee’s assignment to the contract, whichever date is later.”

Employers who already enrolled in e-verify at least 90 days before when the contract is awarded must “initiate verification of all new hires . . . . who are working in the United States, whether or not assigned to the contract, within 3 business days after the date of hire. Employers who have not been enrolled in e-verify for at least 90 days before the contract is awarded, must begin using the program within that 90 day period.

Insomniacs can read the full executive order at http://www.whitehouse.gov/news/releases/2008/06/20080609-2.html or read more about the e-verify program from the USCIS website at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD. The final regulation can be reviewed at 73 Fed. Reg. 67651 (11/14/08) or http://edocket.access.gpo.gov/2008/pdf/E8-26904.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.