FEDERAL ACQUISITION REGULATION FINALIZED - MOST FEDERAL CONTRACTORS WILL BE REQUIRED TO USE E-VERIFY

Implementing the Executive Order 12989, signed by President Bush on June 6, 2008, the Department of Homeland Security, the National Aeronautics and Space Administration(NASA), the General Services Administration (GSA), the Department of Defense (DOD), and other agencies have pulled together final regulations for federal contractor use of E-Verify.

They are not a part of Affirmative Action requirements, but rather a part of the Federal Acquisition Regulations (FAR). The final regulations were published in the Federal Register on November 14, 2008, and become effective 60 days later on January 15, 2009.

For a copy of the 55-page Federal Fegister final rule posting, click here.

Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704)

On June 6, 2008, President George W. Bush signed an amendment to Executive Order 12989, requiring all federal contractors to use the system for employment verification that is specified by the Secretary of Homeland Security. That is currently the E-Verify system.

The U.S. Government’s employment verification service started out life as a test exercise known as the Basic Pilot/Employment Eligibility Verification Program. Then, after a period of time spent testing the system to see what bugs could be detected and repaired, the Department of Homeland Security (DHS) decided to offer it as a live service to employers across the country.

Now known as E-Verify, it was introduced as a voluntary program for U.S. employers. If you are a participant in some work visa programs, the DHS will require that you be an active user of E-Verify. And, if you live in certain states or are a state contractor you may be required to use the service.

What Must Federal Contractors Do With E-Verify?

DHS requires all employers to record new employee data on Form I-9. That involves getting official documents from the employee that prove two things: 1) Their identity…that they are who they say they are, and 2) Their employment eligibility...and that they have the right to work in this country. Form I-9 became a requirement when the Immigration Reform and Control Act was passed in 1986. E-Verify is a system that allows employers to know right away that employee Social Security numbers and employment eligibility documents are authentic. Participation in the E-Verify system is free.

What States Require Employers to Use E-Verify?

A few states have legislation requiring some or all state contractors & subcontractors to participate in the E-Verify system. Check with your legal advisor if you are in one of these states to see if the requirement applies to you. And, be sure to monitor the changing requirements even if you are not in one of these geographies. Your state may require E-Verify at some time in the future.

• Colorado
• Georgia
• Minnesota
• Mississippi
• Missouri
• Nebraska
• Oklahoma
• Rhode Island
• South Carolina
• Utah

States where public employers MUST enroll in the E-Verify program are:

• Arkansas
• Georgia
• Idaho
• Minnesota
• Mississippi
• Missouri
• North Carolina
• Nebraska
• Oklahoma
• Rhode Island
• South Carolina
• Utah

In three states, ALL employers MUST enroll in the E-Verify program:

• Arizona
• Mississippi
• South Carolina

***PLEASE NOTE: These lists may change at any time. Be sure you speak with your legal advisor to get the latest information about your work locations.***

In addition to these states, the city of Mission Viejo, California has passed a city ordinance that requires all employers with city contracts to verify employment eligibility for all their workers using the E-Verify system.

What Federal Contractors Must Participate in E-Verify?

• Federal Authority for Requirement

  Federal Acquisition Regulations (FAR) 1.108(d) requires all federal contracts issued on and after September 8, 2009, to contain a clause requiring the contractor to participate in E-Verify if the contract value exceeds $100,000 and the performance period exceeds 120 days.

  Subcontractors must participate if the prime contract includes the FAR E-Verify clause and the subcontract value exceeds $3,000.

• How Quickly Must a Federal Contractor Register for and Begin Participating in E-Verify?

  Enrollment must be completed within 30 days from the date of the qualifying contract. Within the next 90 days, the contractor must initiate verification queries for employees already on staff who will be working on the contract. That is the same deadline for when all new employees must be entered into the system.

  After the 90-day phase-in period, contractors must initiate verification of each newly hired employee within 3 business days after their start date.

• Verify Existing Employees

  Employers who participate in E-Verify voluntarily are not permitted to submit existing employees for verification by the system. Employers who are captured by the rules for federal contractors MUST submit current employees for verification by the system if they are working on the federal contract.

  A contractor may choose to verify ALL of its employees (even those not working on a federal contract). If you plan do this you must notify the Department of Homeland Security (DHS) by updating your company profile through the "Maintain Company" page on the E-Verify web site.

• What About Off-Shore Employees?

  E-Verify participation only requires U.S.-based employees be submitted for verification. Included in that definition are the fifty States, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands. People working at locations outside those areas should not be submitted for verification.

• Are I-9 Forms Still Required?

  Yes. All employers must still comply with the requirement to prepare an I-9 Form on every newly hired employee. Employers should submit each employee to the E-Verify system only once.

• What About Security Clearances?

  Federal contractors are not required to submit employees to E-Verify if that person has been granted an active federal agency HSPD-12 compliant credential or a U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National Industrial Security Program Operating manual. An I-9 Form is still required at the time people are hired even if they do have a security clearance.

• Timing of Each E-Verify Submission

  New employees may not be submitted to the E-Verify system before they have been given a job offer and accepted that offer. Applicants may not be submitted to E-Verify.

• Poster Requirement

  Each employer participating in E-Verify is required to post the notice provided by DHS indicating that the employer participates in the E-Verify program. Also required is posting the anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice. The posting must appear in a prominent place that is clearly visible to prospective employees and all employees who are to be verified through the system.

  Once you have enrolled in E-Verify, you can find the notices that are required in the "On-line Resources" section of the web site.

  If you wish to have professionally printed posters that contain both English and Spanish language versions of each poster required, go to Laminated E-Verify Poster.

For more information from the U.S. Customs and Immigration Service web site, go to USCIS Q & A Regarding E-Verify.

For the Memorandum of Understanding (MOU) each employer must complete and submit to the DHS and Social Security Administration go to E-Verify MOU.