E-Verify: Government Contractors Must Verify Employees Right to Work Through E-Verify

Starting May 21, 2009, most Federal contractors and subcontractors will be required to start using the E-Verify system to verify that their employees are legally allowed to work in the US.

The E-Verify rule requires the insertion of the E-Verify clause into applicable federal contracts, committing Government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to any given federal contract. “Applicable” federal contracts fall, in general, into the following categories:

• Prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).

• Subcontracts if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.

It should be noted that the rule applies only to employees working in the United States, which is currently defined to include the fifty States and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

Here, reprinted from the USCIS.Gov website are other frequently asked questions about the E-Verify Rule.

1. What is E-Verify, how does it work, and why do federal contractors have to enroll in E – Verify?

E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship. Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and Social Security Administration (SSA) databases.

2. As a current or prospective federal contractor, am I required by the final rule to enroll in E-Verify now?

The final rule applies to solicitations issued and contracts awarded after the effective date of the final rule in accordance with FAR 1.108(d). The final rule will be effective on May 21, 2009. All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the effective date. Under the final rule, employers are required to enroll in E-Verify if and when they are awarded a federal contract or subcontract that requires participation in E-Verify as a term of the contract.

If you have already enrolled in E-Verify and you are awarded a federal contract after May 21, 2009, you will need to update your company profile through the “Maintain Company” page once the contract has been awarded. Once you designate your organization as a federal contractor, all E-Verify users at your company will need to take a federal contractor tutorial that explains the new policies and features that are unique to federal contractors.

3. My company was just awarded a federal contract and the rule is now in effect. When is my company required to enroll in E-Verify?

When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E – Verify program within 30 calendar days of the contract or subcontract award date.

Usage of E-Verify also applies to indefinite-delivery/indefinite-quantity contracts modified after the May 21, 2009 effective date of the rule on a bilateral basis in accordance with FAR 1.1 08(d)(3) to include the clause for future orders. The FAR rule provides that if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial, then the contract should be modified to include the clause.

4. How do I enroll my company in E-Verify?

Before you can start using E-Verify, you need to enroll your company in the program. When you enroll your company, you will be asked to provide basic contact information for your company and agree to follow the rules of the program. At the end of the enrollment process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between your company and DHS.

Please click here to begin the enrollment process for your company: http://www.uscis.gov/e-verify/e-verify-enrollment-page 

During the E-Verify company enrollment process, you will be asked “Which category best describes your organization?” If you have been awarded a federal contract after May 21, 2009, you should select “federal contractor” from the drop-down box. Once you have indicated that you are a federal contractor, the system will then prompt you to identify the federal contractor category (e.g., institutions of higher education; state and local governments and governments of federally recognized Indian tribes; and certain sureties) that best describes your organization along with what groups of your current employees you plan to verify (i.e., current employees assigned to the federal contract or your entire workforce).

Once you have completed the enrollment process, USCIS will review your information and activate your account. After the account is activated, you will receive an email with your login instructions, user ID, and password.

5. The proposed FAR rule would require federal contractors to use E-Verify for both new hires and existing employees who work on a new federal contract. Does the federal government use E-Verify (or otherwise verify work authorization) for both new hires and existing employees?

Yes. Federal agencies verify employment eligibility of new and existing employees. In most instances, the federal government goes well beyond an E-Verify check to confirm work eligibility as part of a variety of suitability and other background checks that are required to be performed on federal employees. These background checks may include, but are not limited to:

• FBI fingerprint and name check;

• Checks against local law enforcement databases;

• Written inquiries to educational institutions, previous employers, and neighbors;

• Credit check;

• Checks to verify name, SSN, date of birth, and citizenship; and

• Checks against other federal and private data sources.

• For all new hires, federal agencies are required to use E-Verify to verify their employment eligibility. Additionally, many new hires also subsequently undergo background investigations and an FBI fingerprint and name check.

For both new and existing employees, federal agencies are required by Homeland Security Presidential Directive — 12, “Policy for a Common Identification Standard for Federal Employees and Contractors” to follow certain credentialing standards prior to issuing personal identity verification cards. These standards include conducting a background investigation which includes verification of name, DOB, and SSN (among other data points) against federal and private data sources. This includes a check against Social Security Administration (SSA) records to validate social security numbers. Additionally, these standards require verification of work authorization for non-U.S. citizens against federal immigration databases.

6. How much will it cost my company to enroll in E-Verify?

Nothing; E-Verify is free. It is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

7. Does the rule apply to existing indefinite-delivery/indefinite-quantity contracts?

Existing indefinite-delivery/indefinite-quantity contracts should be modified by Contracting Officers on a bilateral basis in accordance with FAR 1.1 08(d)(3), to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial.

EMPLOYEES AFFECTED BY THE RULE
Employees Required to be Verified Using E-Verify

1. As a federal contractor, which employees may I verify through the E-Verify system? As a federal contractor participant in E-Verify, you are required to use E-Verify for:

• All new employees, following completion of the Employment Eligibility Verification Form I-9 (Form I-9); and

• All existing employees who are classified as “employees assigned to the contract.”

Employees whom you have already verified through E-Verify should not be re-verified. However, an employee’s previous employment authorization through E-Verify from another employer does not satisfy your obligation to use E-Verify once you have hired them.

2. What is an “employee assigned to the federal contract”?

The rule defines an “employee assigned to the federal contract” as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract.

3. My employee is working on a contract for a minimal amount of time. Is he or she subject to E-Verify?

Yes. The rule does not exempt employees based on the intermittent nature of the work or the length of time spent performing the work.

For additional information and requirements, use the following link.
E-verify Requirements