Aug 30, 2009
E-Verify for Federal Contractors Set to Begin on September 8
FEDERAL CONTRACTORS MUST PARTICIPATE IN E-VERIFY PROGRAM
As of September 8, 2009, most federal contractors and sub-contractors will be required to register and use the Department of Homeland Security’s (DHS) electronic employment eligibility verification system, E-Verify. The program was initially slated to commence in January 2009, but has been delayed three times by the Obama administration. For additional information about E-Verify, visit: www.uscis.gov/everify.
The E-Verify system allows an employer to electronically enter information received from a new employee, or an existing employee who will be assigned to a government contract, provided on his/her I-9, Employment Eligibility Form. E-Verify processes the information entered by the employer against the Social Security Administration (SSA) and DHS databases and provides the employer with an affirmative confirmation of work authorization or a tentative non-confirmation.
At present, more than 92,000 employers are using the E-Verify system with a 96.1% immediate work authorization confirmation rate. DHS estimates that there were 6.6 million new hires in the U.S. in fiscal year 2008 (October 2007-October 2008), and one in eight of these new hires were processed through the E-Verify system. While the concept of immediate confirmation of work authorization could be an alluring prospect for some employers, the technical and logistical issues that it creates with a tentative non-confirmation or a final non-confirmation for 3.9% of the U.S. workforce cannot be ignored.
In some states, E-Verify participation is mandatory for all employers, however; this new rule is a decisive attempt by DHS to require participation in E-Verify on a national level. Individual states’ requirements that its employers use the program has been the subject of court challenges and has received significant criticism from immigrant’s rights groups, but DHS is continuing to push forward the expansion of the E-Verify program. By making the system mandatory for virtually all Department of Defense, NASA and Government Services Administration contracts, the federal government is using this new regulation as a tool to increase dramatically its user participation statistics.
The new rule requires that contractual language be inserted into new and existing federal contractors to ensure that it is only doing business with companies who have a “legal” workforce. As there continue to be issues with the system, this new mandate will create further logistical and tracking burdens for human resources and legal professionals administering government contracts. Specifically, the rule requires that all contracts awarded or solicitations issued after January 15, 2009 include a clause related to the mandatory use of the E-Verify system, with the limited exemption for those contracts less than $100,000 or a performance duration of less than 120 days. In addition, the rule exempts contracts that will be wholly performed overseas and for commercially “off the shelf” items (COTS) and services It will also be required for most subcontractors, flowing from covered contracts, providing exceptions only for those contracts less than $3,000 in services or construction.
In addition to the requirements the rule imposes on new contracts, the rule extends its reach to ongoing contracts, where there is an indefinite delivery/indefinite quantity. In these instances, in which the contract will extend past June 15, 2009 and there is a substantial amount of work still to be performed. For companies registered in E-Verify as federal government contractors, all new hires will need to be verified through the E-Verify system. Any existing employees who will be newly assigned to a government contract that requires the use of E-Verify will need to be queried through the system as well. Limited exceptions to the use of E-Verify apply to individuals holding certain credentials or security clearances.
Congressional authorization for the E-Verify program ends in March and must be renewed for the program to continue. The renewal of this program could be the first glimpse into what the new administration and the Democrat-controlled Congress will do on immigration reform in the coming years. Based on the resources dedicated to the creation and re-branding of this new program, it could be challenging to eliminate the program completely, particularly concerning the current economic climate. It is possible that the boost in participation from this new rule will fuel proponents of the program in Congress to re-authorize its funding.