The federal government will once again postpone the implementation of a rule that amends the Federal Acquisition Regulations (FAR) to require certain federal contractors to participate in the E-Verify electronic eligibility verification program. The rule is now expected to take effect on June 30, 2009. An announcement of the postponement is expected to be published in the Federal Register on Friday, April 17, 2009. E-Verify is an electronic system administered by the United States Citizenship & Immigration Services (USCIS) and the Social Security Administration (SSA). This program allows participating employers to verify whether newly hired employees are authorized to work in the United States by checking the information provided by employees on their Form I-9 against both USCIS and SSA databases.
The E-Verify requirement was originally slated to take effect on January 15, 2009 and has now been postponed three times, after business groups filed a lawsuit challenging its legality and after the Obama administration began reviewing regulations issued by the previous administration. Currently, employer enrollment in the E-Verify program is primarily voluntary, and there is no fee for participating employers. However, certain states have passed legislation requiring the use of E-Verify; and as of June 30, 2009, Federal government contractors will be required to use E-Verify for all contractor and subcontractor new hires, and ALL employees (existing and new) directly engaged in the performance of work under the covered contract.
Which Contracts Apply?
Federal contracts awarded and solicitations issued after June 30, 2009 will include a clause committing government contractors to use E-Verify. The E-Verify requirement would apply to federal contracts with a performance period longer than 120 days and a value over $100,000. Service or construction subcontracts of a covered contract would also be required to include the E-Verify clause, if the value of the subcontract is over $3,000. Contracts for items that are commercially available "off the shelf" or that require only minor modifications would be exempt, as would federal contracts for food and agricultural products shipped as bulk cargo and contracts for work performed outside the United States.
How This Affects You
Under the final rule, after June 30, 2009, employers will be 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. Federal contractors are required to use E-Verify for both new hires and existing employees who work on a new federal contract.
If an employer has not yet enrolled in E-Verify, then it has thirty (30) days from the date of contract award to enroll, and ninety (90) days from the date the employer enrolls with E-Verify to initiate verification queries for employees already on staff who will be working on the contract, and to begin using the system to verify newly hired employees.
There are several exceptions and exemptions associated with this new rule. If your company is a federal contractor, it is advised to seek counsel to discuss whether or not E-Verify enrollment is necessary.
We will provide further information as soon as it becomes available.
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