Immigration Alert: Final E-Verify Regulations for Federal Contractors Published Today

11/14/2008

Today the U.S. government published final regulations in the Federal Register that will require federal contractors and most federal subcontractors to begin using the E-Verify system to confirm the employment eligibility of certain employees beginning January 15, 2009. The rule, an amendment to the Federal Acquisition Regulation (FAR), is the implementation of Executive Order 12989 as amended by President George W. Bush on June 6, 2008, which we discussed in a previous alert.

E-Verify is an electronic system administered jointly by the Department of Homeland Security and the Social Security Administration for the verification of employment authorization. E-Verify provides access to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the FAR 1.108(d) to require all federal contractors to agree, through language that will appear in all new federal contracts, to enroll in the E-Verify system within 30 days of a contract “award” date to confirm employment eligibility of all new employees hired during the term of that contract, and in addition to use E-Verify to confirm employment eligibility of all current employees of that contractor who perform contract services for the federal government within the United States. The use of E-Verify to confirm employment documents of all new hires as well as all existing employees that will be working on federal contracts must commence within 90 days of registering with the E-Verify program. The E-Verify requirement will apply to all existing employees directly performing work on a covered contract.

There are some exceptions included in the newly finalized regulations. Contractors with contracts awarded for less than $100,000, for a duration of less than 120 days, for work performed outside of the United States, or for “commercially available off-the-shelf” items and related services will not be required to use E-Verify. In addition, subcontractors retained for services or construction valued at $3,000 or less will also be exempt. The revised regulations also clarify that employees who perform general support work, and who do not perform substantial or significant duties applicable to a specific contract, are not covered by these new E-Verify requirements.

While the “E-Verify” clause will not begin appearing in federal contracts until January 15, 2009, the USCIS encourages employers that plan on bidding on federal contracts to register for E-Verify in advance, suggesting it may allow E-Verify users to become familiar with the system prior to the award or modification of any federal contracts. In addition, once your organization is designated as a federal contractor, all E-Verify users at your company will be required to complete a federal contractor tutorial that explains new policies and features unique to federal contractors, and thus if your company is already designated as such, it may be helpful to begin this process before January 15, 2009.

For more information on E-Verify, see a video podcast of Mintz Levin’s May 21, 2008 webinar on E-Verify.

Employers can begin the E-Verify registration process online.

If you would like more information
on any immigration matter, please contact your immigration attorney at Mintz Levin or visit www.mintz.com.

Susan J. Cohen
(617) 348-4468
SCohen@mintz.com

Jeffrey W. Goldman
(617) 348-3025
JGoldman@mintz.com

Reena I. Thadhani
(617) 348-3091
RThadhani@mintz.com

Molly Carey
(617) 348-4461
MCarey@mintz.com

William L. Coffman
(617) 348-1890
WCoffman@mintz.com

Brian J. Coughlin
(617) 348-1685
BJCoughlin@mintz.com

Lorne M. Fienberg
(617) 348-3010
LFienberg@mintz.com

Marisa C. Howe
(617) 348-1761
MHowe@mintz.com

Bethany S. Mandell
(617) 348-4403
BSMandell@mintz.com