"In Focus" on Employer Compliance:  E-Verify for Federal Contractors

Hello:  I would presume that we have a readership interested in E-Verify for Federal Contractors.  We've been unpacking the regulation, enrolled in an excellent Dept of Homeland Security webinar on the topic 09/08/2009 that we highly recommend, and have been studying the FAQ's and timeline regulations.  We share this information with you and encourage you to contact us for further consultation and setup concerning E-Verify for Federal Contractors.  If you are not a client of Immigration Solutions, you might wish to explore our employer compliance services and solutions.

There are many important items in advance to consider moving forward for those of you who are recipients of federally awarded contracts and who additionally engage the services of sub-contractors in fulfilling those contracts.  We will address some of these issues in this Client Alert.

Leslie Davis
Managing Director   
Danger Sign
Guidance Issued on the E-Verify Federal Contractor Ruling
The steps that federal contractors are now required to implement are extremely time-sensitive.  It is recommended that you confer with your immigration provider to make sure that you are properly implementing and adhering to the new E-Verify regulations that went into effect on September 8, 2009.  This does not mean, however, that federal contractors will be required to comply with the E-Verify requirements of the rule as of that date as per our Timeline Chart.

Importantly, however, although the Rule is effective September 8, it does not apply to existing contracts.  It only applies to qualifying contracts awarded on or after September 8, 2009 and certain indefinite-delivery/indefinite-quantity contracts modified after September 8, 2009.  In addition, the Rule requires that the contract contain language specifically requiring participation in E-Verify.  Thus, the E-Verify requirement only applies to contracts awarded/amended after September 8, 2009 that contain the FAR E-Verify clause.

::::  You are Required to Comply with the E-Verify Requirement if:

1)  If you are awarded a federal contact on or after September 8, 2009
2)  If the contract is valued at more than $100,000
3)  Is for work that is performed in the USA
4)  Is for a performance period of at least 120 days and is not for off-the-self items

::::  What Employees need to be Verified through E-Verify?

The rule applies to all new hires and existing employees performing direct work in the USA under a contract hired after 11/6/1986.  All employees who perform direct work under a government contract, regardless of whether they are new hires or existing employees, must be verified through E-Verify.  Support work (of an administrative nature) is not considered "direct work" under the contract if the work is normally performed.

::::  Options for Existing Employees

There is the option pf verifying all existing employees regardless of whether they are assigned to a contract. If you select this option, you must initiate verifications for the entire workforce within 180 days of the notice.

::::  What if I Employ the Services of Sub-Contractors?

The E-Verify language must be included in all subcontracts.  All subcontractors must also verify their existing employees directly performing work under the contract.  Contractors will be required to include a clause for subcontractors if they meet the following conditions:

1)  Is for commercial or non-commercial services or construction
2)  Exceeds $3,000
3)  Includes work performed in the USA

:::::  Does the E-Verify Requirement Apply to a Parent or Subsidiary?

The obligation to comply generally applies only to the corporate entity that signs the federal contract. 

::::  How Long Must I use E-Verify?

Employers are reqired to comply with the E-Verify reqiremetn for the duration of the covered contract.  Once the contract has concluded, you may continue to use E-Verify for existing employees.  If you wish to discontnue upon completion of the contract, you must terminate as an E-Verify participant in the system.

::::  What Should you Do Now to Meet this New Regulation?

1)  Decide what part of your workforce should be run through E-Verify.  Will you verify all of your employees or only those who work on federal contracts?
2)  Get your I-9's in order as you will use these to do the verification of current employees in E-Verify.  Locate all of your I-9's and begin to audit them for accuracy
3)  Decide how you will communicate with our employees concerning E-Verify while conforming with the strict deadlines.
4)  If you currently participate in E-Verify, have you reviewed your audit reports lately?  Who will do so in your company?
5)  Are your hiring managers using the program in a non-discriminatory way if you are currently using E-Verify?
6)  If you use sub-contractors, you must work out the logistics with them as to how you will monitor their compliance with E-Verify.


Our firm participated in the USCIS webinar (one of many scheduled through the month of September) on Tuesday September 8th, and we were pleasantly surprised - it's terrific and we highly recommend it.  They walk you through their presentation and also walk you through the actual E-Verify log on and inquiry process.  They answered questions through email and also opened up for a 1/2 hour of live Q&A - very well organized. 

For information by telephone, you can call:  888 464.4218.  We will shortly be receiving a transcript of Q&A and links to their presentation and we will share these when received.

If you are interested in setting up a presentation for your organization, or interested in scheduling a live speaker for an event or conference, you can do so by calling the above telephone number or emailing:  E-Verify@dhs.gov
In the meantime, we wanted to share a few resources that we think are worthy, as follows:

1)  Where can you find the law:  Federal Register:  http://edocket.access.gpo.gov/2008/pdf/E8-26904.pdf
2)  The link to the DHS webpage for E-Verify
3)  FAQ Link
4)  Form I-9, Employment Eligibility Verification Information
5)  How do I complete Form I-9?  http://www.uscis.gov/files/nativedocuments/E3eng.pdf
6)  USCIS Supplemental Guide 9/8/09 for Federal Contractors
Lastly, there is a very interesting article on this topic in today's Wall Street Journal that we link to.

We will continue to report on this and to provide clear and up-to-date information.  If you'd like to become a client of Immigration Solutions, please contact us.

New I-9 Form
USCIS posted a new version of the Form with a revised date of 08/07/2009 on its website.  As we previously reported, there have been no new changes to the form, other than the revision and expiration dates.  USCIS further indicated that employers are free to use either this version or the prior version (Rev. 02/02/2009) until further notice. 
We link to the I-9 Portal

Immigration Solutions is closely following implementation of the federal contractor E-Verify rule and will issue additional News Alerts and Blog postings which you can sign up to receive on our website as new information is released. If you have any questions about this alert or about employer compliance generally, please contact our office. 

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