Long Time Coming: Learning the Ropes of E-Verify Rules and Procedures
by Darrell R. VanDeusen
E-Verify is a free-of-charge, internet-based system created to enable employers to electronically verify that employees are legally eligible to work in the United States, regardless of citizenship. Participation in E-Verify has been voluntary, but that will change for certain federal contractors beginning on September 8, 2009.
Where Did E-Verify Come From?
On June 6, 2008, President Bush signed Executive Order 13465 "Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System." This Order states: "Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of:
- all persons hired during the contract term by the contractor to perform employment duties within the United States; and
- all persons assigned by the contractor to perform work within the United States on the federal contract."
The Federal Acquisition Regulation (FAR) was therefore amended to require federal contractors to use E-Verify, which is the system designated to implement the Executive Order.
Several groups challenged the legality of the Order, the amended regulations implementing the Executive Order, and the designation of E-Verify as the method of implementation. In late August 2009, Maryland's Federal District Court, in Chamber of Commerce v. Napolitano, 2009 WL 2632761 (D. Md. 2009) rejected these challenges.
What Happens on September 8, 2009?
As a result of the Court's decision, covered federal contracts and subcontracts awarded on or after September 8, 2009, will require winning bidders to use E-Verify to confirm the employment eligibility of all new employees and all employees assigned to the contract. Previously awarded indefinite delivery/indefinite quantity ("IDIQ") contracts will be amended to include this E-Verify requirement if the remaining period of performance extends at least six months after September 8, 2009, and the amount of work or number of orders expected under the remaining performance period is substantial.
Important Note: The E-Verify mandate is prospective and the requirement applies to those contracts awarded after September 8, 2009.
Although they may enroll earlier, 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. Contractors participating in the E-Verify program for the first time have 30 calendar days from contract award to enroll, and 90 calendar days from enrollment to start using the system to verify all new hires as well as any existing employees who will be assigned to the contract
After the 90-day phase-in-period, the employer is required to initiate verification of each newly hired employee within 3 business days after start date. While 3 days may seem short, it is possible for an employer to start the verification of a newly hired employee before the start date as long as the employee has accepted the position and filled out the I-9 Employment Eligibility Verification Form
Contractors already enrolled in E-Verify have 90 calendar days from the contract award date to verify employees assigned to the contract and 3 business days from the hire date to verify all new hires. In addition, upon providing appropriate notification to the Department of Homeland Security ("DHS"), contractors have the option of using E-Verify to verify all their employees, even those employees not assigned to work directly on affected government contracts. If the contractor elects this option, the time period to verify all employees would be 180 days.
The E-Verify requirement does not apply to all federal contracts. The E-Verify clause must be included in prime federal contracts with a period of performance longer than 120 days and a value of $100,000 or more. The E-Verify clause also flows down to subcontracts for services or for construction with a value over $3,000.
Certain types of contracts are exempt from the E-Verify rule. The exempt contracts are:
- Contracts that include only commercially available off-the-shelf ("COTS") items (or minor modifications to a COTS item) and related service (i.e., any commercial item that is sold in substantial quantities in the commercial marketplace and is offered to the government in the same form that is available in the commercial marketplace, or with minor modifications);
- Contracts of less than the simplified acquisition threshold ($100,000);
- Contracts of less than 120 days; and
- Contracts where all work is performed outside the 50 States, District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.
The following type of employees and employers are also exempt from E-Verify:
- Employees who the employer has already verified through E-Verify should not be re-verified.
- Any employee with an active federal agency HSPD-12 credential or who has been granted and holds an active U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National Industrial Security Program Operating Manual should not be verified.
- Institutions of higher learning, state and local governments, federally recognized Indian tribes, and sureties performing under a takeover agreement with a federal agency are not required to use E-Verify for all new hires. Such entities may choose to use E-Verify only on those new and existing employees assigned to the covered federal contract.
What Do Covered Employers Have to Do?
Let's take a closer look at how this will work for most employers. As a federal contractor participant in the E-Verify program, an employer must use the system for:
- All new employees, following completion of an I-9; and
- All existing employees who are classified as "employees assigned to the contract" (i.e., hired after 11/6/1986 and directly performing work in the U.S. under a contract that includes a clause committing the contractor to use E-Verify).
Before an employer can use the E-Verify system, the employer will have to enroll in the program online. The link to the USCIS webpage to start the enrollment process is: https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES
An employer that has multiple hiring sites can verify all hires from one site by selecting "multiple site registration" when registering. Once the enrollment process has been completed, USCIS will review the information and activate the account. The employer will receive login instructions together with user ID and password to access the site.
The enrollment process includes agreeing to the E-Verify Memorandum of Understanding ("MOU"). The terms of the MOU are established by U.S. Customs and Immigration Service ("USCIS") and are not negotiated with each participant. In consenting to the MOU, employers agree to abide by current legal hiring procedures and to ensure that no employee will be unfairly discriminated against in the use of the E-Verify program. This includes an agreement prohibiting the use of E-Verify as a pre-employment screening tool
Important Note: E-Verify may not be used until after a job offer has been made and accepted. Violation of the terms of the MOU by an employer is grounds for termination of the employer's participation in the E-Verify program, and by extension, the contract.
All employers must complete and retain an I-9 Form for each new employee hired. Federal contractors put the information provided on the I-9, including the employee's identity and employment eligibility information, into the E-Verify system. E-Verify will check that information against information contained in databases maintained by the Social Security Administration ("SSA"), USCIS, DHS, and other government agencies
The system will then verify name, social security number, date of birth, and U.S. citizenship status, as well as whether a non-U.S. citizen is eligible for employment. If the information submitted cannot be verified, the employer will receive a "Tentative Nonconfirmation," either from the SSA or DHS. In such a case, the employer must furnish the employee with a "Notice to Employee of Tentative Nonconfirmation," a notice which is generated by the E-Verify system. It is the employee's duty to indicate whether he or she contests or does not contest the finding of the notice, after which both the employee and employer are required to sign the notice.
If an employee contests the notice, the employer must print a second notice (also generated by E-Verify) called a "Referral Letter." The Referral Letter contains information about resolving the tentative nonconfirmation. It also provides contact information for the agency that provided the tentative non-confirmation. At this point, the employee has eight workdays to visit an SSA office or call USCIS (depending on who provided the notice) to attempt to resolve the matter.
An employer cannot terminate or take adverse action against an employee who contests a notice until final resolution of the matter is reached.
Participation in E-Verify modifies the approach to employee verification that employers have followed:
- Identity documents used for purposes of verification must have photographs.
- If an employer receives confirmation of the worker's identity and employment eligibility, the employer has created a rebuttable presumption that the employer has not violated the law with respect to hiring the worker.
- The employer must notify DHS if they continue to employ a worker who has received final non-confirmation. The employer is subject to a fine ranging from $500 to $1,000 for each failure to notify DHS of any employment that continues beyond notice of final non- confirmation.
- If an employer continues to employ an individual after receiving notice of final non-confirmation, and it turns out that that employee is an unauthorized alien, the employer is subject to a rebuttable presumption that the employer is knowingly employing an unauthorized alien.
- No person or entity participating in E-Verify is civilly or criminally liable under any law as long as the action taken was in good faith reliance on information provided via the confirmation system.
Where Can I Get Additional Information?
For additional information on E-Verify, including FAQs, go to the USCIS's webpage. Click here.
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