What is happening on September 8, 2009?
On September 8, 2009 the government will begin including a clause in all qualifying federal contracts requiring the use of E-Verify. They may also begin to amend existing contracts, if the contracts meet the qualifying criteria. Once an employer has a contract containing the E-Verify clause, they will be required verify the employment authorization of all new employees, and all existing employees who are assigned to work on the relevant federal contract.
What is E-Verify?
E-Verify is an online system intended to allow employers to verify the employment authorization of newly hired employees. Employers enter the information from the employee’s I-9 form into the E-Verify program. The program electronically compares this information with information contained in databases maintained by the Department of Homeland Security (DHS) and Social Security Administration (SSA).
Will my company have to start using E-Verify on September 8, 2009?
It depends. Only employers who have a government contract with an E-Verify requirement clause are required to use E-Verify. If your contract is amended, or if you are awarded a contract on or after September 8, 2009, then you will need to enroll in, and use the system.
Does/will my federal contract qualify?
An employer has a qualifying federal contract if:
- The contract is governed by the Federal Acquisition Regulation (FAR);
- The period of performance is longer than 120 days;
- The contract has a simplified acquisition threshold of over $100,000 or is a subcontract for services or for construction with a value over $3,000; and
- The work is being performed in the U.S.
Please note that the new rule has several exemptions, including contracts that include only commercially available off-the-shelf items and related services.
It looks like my company will have to enroll. What do I do next?
Affected contractors will be required to enroll in E-Verify within 30 days of the contract award/modification date.
- New Hires: Within 90 days of enrollment, the contractor must begin to use E-Verify to initiate verification of employment eligibility of new hires who are working in the United States, whether or not assigned to the contract. Once the employer begins to verify new hires, such verification of new hires must be initiated within 3 business days after the date of hire. E-Verify does not currently allow employers to enter a future start date. Therefore, the employee must be run through the system on or after the first day of hire and before the end of the third day. This timeline is not flexible.
- Current Employees Assigned to the Contract: Once enrolled in E-Verify as a federal contractor, the Employer must initiate verification of existing employees assigned to the contract within 90 calendar days after the date of enrollment OR within 30 days of an employee’s assignment to the contract, whichever date is later.
Employers can choose which business sites to enroll in E-Verify, however, once a site has signed the Memorandum of Understanding all new hires at that site must be E-Verified.
Please note that employers who enroll in E-Verify are still required to complete the I-9 form for all newly hired employees. In other words, enrolling in E-Verify does not exempt employers from the responsibility to complete, retain, and make available for inspection I-9 forms, as currently required by law.
I am not a Federal Contractor or Subcontractor – should I sign up anyway?
Any employer can voluntarily enroll in E-Verify. Some companies have been required to sign up as a consequence of breaking immigration laws, or because state law requires it. However, for most employers, enrollment is voluntary. Please note that enrolling in E-verify does not protect a company from worksite enforcement actions. The E-Verify system is monitored closely by the federal government. As outlined in the E-Verify Memorandum of Understanding, employers are liable for inappropriate use of the system. In addition, by agreeing to use E-Verify, employers invite closer scrutiny of their workforce and hiring procedures. As a result, it is crucial for employers to have their I-9 forms and hiring procedures in order prior to enrolling in E-Verify. It is advisable to have an internal audit conducted by an outside source to verify that hiring procedures and form completion are compliant with the law.
The E-Verify requirement for federal contractors has been postponed four times in the past; will it be pushed back again?
Maybe. As of today, it appears that the September 8, 2009 start date will stick. However, an emergency motion for an injunction to prevent the rule from going into effect has been filed. If the motion is granted and the date changes (again!), we will be sure to let you know.
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