As previously reported in Compliance Matters, implementation of a controversial Obama administration rule requiring many federal contractors and subcontractors to use the federal government's E-Verify employment verification system was tied up in a court challenge in a Washington D.C. federal court. About two weeks ago, the Court denied the various legal challenges and cleared the way for it's implementation effective today. E-Verify Rules
Effective today, affected companies will have provisions inserted into their new or existing federal contracts requiring them (and eligible sub-contractors) to begin using the federal government's E-Verify system for all persons hired during the term of the contract. In addition, covered contractors and eligible sub-contractors must use E-Verify to check on the work authorization of all existing employees "directly performing work" on the covered federal contract, during the term of the covered contract.
The E-Verify System was established by the U.S. Citizenship and Immigration Services (USCIS) to enable employers to instantly verify the employment eligibility of newly-hired employees against the information contained in the Social Security Administration, USCIS, and other government databases. Until now, participation in the E-Verify program was strictly voluntary. The system remains available on a voluntary basis for employers who are not government contractors and for those employers with government contracts that do not qualify under the new rule.
Employers subject to the new rule should be aware that there is a host of record retention rules that employers must follow relating to the use of E-Verify. This information is contained in the comprehensive Memorandum Of Understanding which the contractor must sign as part of the E-Verify enrollment process.
Link to DHS E-Verify
Additionally, employers who use the E-Verify system must strictly follow the provisions for notifying employees when a tentative non-confirmation is received and providing employees with an adequate opportunity to correct or contest the information received from the E-Verify program.
TIMING
Covered federal contractors and sub-contractors who are not already enrolled in E-Verify must do so within 30 calendar days of the award of the contract that requires E-Verify participation or the addition of the E-Verify provision into an existing contract. Existing contractors and sub-contractors should check existing contracts for E-Verity obligations. If the contract does not contain E-Verify obligations, check with your contracting officer to ascertain when the new provisions will be added.
Contractors and sub-contractors enrolling for the first time in E-Verify must do so within 30 days and begin using the system to verify new employees within 90 days of enrollment. Once enrolled, the contractor must initiate the E-Verify verification of every newly-hired employee within three business days of their start date of employment.
Those federal contractors and sub-contractors who have already been enrolled in E-Verify for more than 90 days should continue to timely submit new hire verification queries to E-Verify. In addition, they also must begin verification of existing employees assigned to perform work on the contract. That process must be completed within 90 days.
Contractors and sub-contractors who have been enrolled in E-Verify for less than 90 calendar days as of September 8th are allowed 90 calendar days from the date of enrollment in the system to initiate verification of newly-hired employees and complete the work authorization verification of existing employees assigned to work on the contract.
Optional Verification of Existing Employees
Prior to implementation of today's new rule, employers who enrolled in E-Verify were only permitted to use the system to verify the work authorization of new hires. Employers were prohibited from using the government's system to verify the work authorization of existing employees. That's changed under the new rule, at least for qualifying government contractors and sub-contractors. The new rule provides enrolled contractors and sub-contractors with the option to verify the work authorization of it's entire workforce, with the exception of those hired before November 7, 1986. That's the date when the federal government first implemented the Immigration Reform and Control Act (IRCA) outlawing the knowing hiring or continued employment of unauthorized workers. Under a specific provision of the 1986 enactment, employers did not have to verify or look into the work authorization of employees that were already on the payroll.
For more details about the new mandatory E-Verify requirements for federal contractors, please see the December 14, 2008 Compliance Matters.
CM - 12/14/08
Your Firm contact is ready to answer your questions relating to this new rule, E-Verify and/or general I-9 compliance.
