Merritt J. Green and William T. Welch
General Counsel, P.C.
On November 14, 2008, the Bush Administration finalized a rule amending Executive Order 12989 requiring federal contractors to use E-Verify to verify the employment eligibility of all contractor new hires. E-Verify is a no-cost Internet-based system operated by the Department of Homeland Security (“DHS”) that allows employers to check employment eligibility of their employees based on their immigration status. Prior to the amendment, E-Verify was only voluntary . The rulewill go into effect on January 15, 2009.
This new rule requires all federal contractors performing work in the United States 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 subcontract over $3,000. Additionally, the E-Verify system will apply to indefinite-delivery/indefinite-quantity contracts modified after January 15th 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.
It should be emphasized 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; and
• The employee must be given up to eight federal government work days to contact the appropriate agency to challenge the tentative non-confirmation.
• 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.