A Primer On E-Verify

As we noted last week, the Obama administration has decided to make E-Verify enrollment a requirement for all federal prime and subcontractors as of September 8, 2009.  E-Verify is a no-cost Internet-based system operated by the Department of Homeland Security that allows employers to check employment eligibility of their employees based on their immigration status.  E-Verify is currently optional, and some contractors are already using it.  For those who are not, here is how the new system will work.

When the new rule goes into effect, all federal contractors performing work in the United States will be required to enroll in E-Verify within 30 days of being awarded a contract.  Once enrolled, the contractor has 90 days to verify the employment eligibility of all employees assigned to the federal contract.  E-Verify must then be used for all new hires and all currently-employed employees who are subsequently assigned to work on the contract.  The verification process must be completed by the contractor within 30 days.  The rule also requires prime contractors to apply the same requirements to all subcontracts over $3,000.  Additionally, the E-Verify system will apply to indefinite-delivery/indefinite-quantity contracts modified after September 8 to include the E-Verify clause for future orders.  This mandatory E-Verify requirement applies to all contracts over $100,000, except those lasting less than 120 days or for commercial off-the-shelf items.

We emphasize that the E-Verify system cannot be used by employers to screen potential employees. The earliest point at which an employer can seek to verify the employment eligibility is after an employee has accepted a position and completed an I-9 Form. Employers must also notify their employees and any applicants of their enrollment in the E-Verify program.

Employers enrolling in E-Verify must register online and then enter into a Memorandum of Understanding (MOU) with the Government. This MOU includes the following provisions:

• If an employee receives a notice of mismatch (also known as a “tentative non-confirmation”), the employer must promptly provide the employee with a written notice generated by the E-Verify system, explaining how to challenge the finding;
• Employers are prohibited from taking adverse action against the employee for contesting the tentative non-confirmation;
• The employee must be given up to eight federal government work days to contact the appropriate agency to challenge the tentative non-confirmation; and
• If the employee fails to challenge the finding of non-confirmation or the non-confirmation becomes final, the employee must be removed from performance on any federal government contract and may be terminated.

If you have any questions about using E-Verify or how it will affect your business, please contact William T. Welch, Chair of GCPC’s Government Contracts practice group.