New E-Verify Rule: Effective January 15, 2009

E-Verify, a voluntary program administered by the Social Security Administration and the Department of Homeland Security, verifies the employment eligibility of newly hired workers.  Effective January 15, 2009, the federal government will be inserting language into federal contracts that requires contractors to enroll in E-Verify.   All federal contractors and subcontractors with qualifying contracts will be required to enroll and use the E-Verify system.  An employer has a qualifying federal contract if:

1. The contract is governed by the Federal Acquisition Regulation (FAR);
2. The period of performance is longer than 120 days;
3. 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
4. The work is being performed in the U.S.  

The new rule has several large exemptions, including contracts that include only commercially available off-the-shelf items and related services. 

Affected contractors will be required to enroll in E-Verify within 30 days of the contract award date.    Once enrolled, employers will be required to confirm the employment eligibility of all newly hired employees and any employee directly working on the federal contract through the E-Verify system.    Employers will also still be 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.

For frequently asked questions about federal contracts and E-Verify, visit the F.A.Q. section of U.S. Citizenship and Immigration Services website.

Employers can enroll in E-Verify by visiting the Department of Homeland Security website.

The E-Verify system is monitored closely by the federal government.  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. 

On December 23, 2008, a lawsuit was filed to enjoin the rule and prevent employers from subject to this rule.  To date, a hearing for this matter has not been scheduled. 

Employers should remain diligent and up-to-date with all requirements. If you have questions regarding the new rule pertaining to E-Verify or I-9 Compliance contact GoffWilson.