Holzschu, Jordan, Schiff & Associates

Government Contractors Must Verify Employees

Right to Work Through E Verify Starting

~~January 15, 2009~~

~~January 28, 2009~~

September 8, 2009

The rule requiring E-Verify for federal contractors was previously slated to take effect on January 15, 2009. On January 9, 2009, the rule was suspended until February 20, 2009. On January 28, 2009, the rule was suspended to May 21, 2009. The US Chamber has settled its suit against the E-Verify requirements and the E-Verify will go into effect on September 8, 2009.

January 9, 2009

Several business groups, including the U.S. Chamber of Commerce, filed a lawsuit
last week in the U.S. District Court for the District of Maryland seeking to have
the court rule that the E-Verify regulations are unconstitutional. The court
immediately ordered the U.S. government and the business groups to confer by next
Monday to see if some compromise could be reached regarding the January 15 effective
date. The parties have agreed to postpone the effective date to February 20. In the
meantime, they will present their legal arguments to the court, which is expected to
rule before February 20 on whether the regulations can withstand a constitutional
challenge.

Original Notice:

On June 6, 2008, the President issued 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,” providing that “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: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) 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.

Some of the more common questions are:

1. What is E-Verify, how does it work, and why do federal contractors have to enroll in E - Verify?

E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship. Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and Social Security Administration (SSA) databases.

2. As a current or prospective federal contractor, am I required by the final rule to enroll in E-Verify now?

The final rule applies to solicitations issued and contracts awarded after the effective date of the final rule in accordance with FAR 1.108(d). The final rule will be effective on January 15, 2009. All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the effective date. Under the final rule, 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.

If you have already enrolled in E-Verify and you are awarded a federal contract after January 15, 2009, you will need to update your company profile through the “Maintain Company” page once the contract has been awarded. Once you designate your organization as a federal contractor, all E-Verify users at your company will need to take a federal contractor tutorial that explains the new policies and features that are unique to federal contractors.

3. My company was just awarded a federal contract and the rule is now in effect. When is my company required to enroll in E-Verify?

When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E - Verify program within 30 calendar days of the contract or subcontract award date.

Usage of E-Verify also applies to indefinite-delivery/indefinite-quantity contracts modified after the January 15^th, 2009 effective date of the rule on a bilateral basis in accordance with FAR 1.1 08(d)(3) to include the clause for future orders. The FAR rule provides that if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial, then the contract should be modified to include the clause.

4. How do I enroll my company in E-Verify?

Before you can start using E-Verify, you need to enroll your company in the program. When you enroll your company, you will be asked to provide basic contact information for your company and agree to follow the rules of the program. At the end of the enrollment process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between your company and DHS.

Please click here to begin the enrollment process for your company: https://www.visdhs.com/employerregistration

During the E-Verify company enrollment process, you will be asked “Which category best describes your organization?” If you have been awarded a federal contract after January 15, 2009, you should select “federal contractor” from the drop-down box. Once you have indicated that you are a federal contractor, the system will then prompt you to identify the federal contractor category (e.g., institutions of higher education; state and local governments and governments of federally recognized Indian tribes; and certain sureties) that best describes your organization along with what groups of your current employees you plan to verify (i.e., current employees assigned to the federal contract or your entire workforce).

5. The proposed FAR rule would require federal contractors to use E-Verify for both new hires and existing employees who work on a new federal contract. Does the federal government use E-Verify (or otherwise verify work authorization) for both new hires and existing employees?

Yes. Federal agencies verify employment eligibility of new and existing employees. In most instances, the federal government goes well beyond an E-Verify check to confirm work eligibility as part of a variety of suitability and other background checks that are required to be performed on federal employees. These background checks may include, but are not limited to:

For both new and existing employees, federal agencies are required by Homeland Security Presidential Directive – 12, “Policy for a Common Identification Standard for Federal Employees and Contractors” to follow certain credentialing standards prior to issuing personal identity verification cards. These standards include conducting a background investigation which includes verification of name, DOB, and SSN (among other data points) against federal and private data sources. This includes a check against Social Security Administration (SSA) records to validate social security numbers. Additionally, these standards require verification of work authorization for non-U.S. citizens against federal immigration databases.

Nothing; E-Verify is free. It is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

The rule requires the insertion of the E-Verify clause into applicable federal contracts, committing Government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to any given federal contract.

The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).

The rule only covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.

The rule applies only to employees working in the United States , which is currently defined to include the fifty States and the District of Columbia , Guam, Puerto Rico , and the U.S. Virgin Islands.

5. Does the rule apply to existing indefinite-delivery/indefinite-quantity contracts?

Existing indefinite-delivery/indefinite-quantity contracts should be modified by Contracting Officers on a bilateral basis in accordance with FAR 1.1 08(d)(3), to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial.

1. As a federal contractor, which employees may I verify through the E-Verify system? As a federal contractor participant in E-Verify, you are required to use E-Verify for:

Employees whom you have already verified through E-Verify should not be re-verified. However, an employee’s previous employment authorization through E-Verify from another employer does not satisfy your obligation to use E-Verify once you have hired them.

The rule defines an “employee assigned to the federal contract” as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract.

3. My employee is working on a contract for a minimal amount of time. Is he or she subject to E-Verify?

Yes. The rule does not exempt employees based on the intermittent nature of the work or the length of time spent performing the work.

*Press Materials and other Media Info*
	Holzschu, Jordan, Schiff & Associates Government Contractors Must Verify Employees Right to Work Through E Verify Starting ~~January 15, 2009~~ ~~January 28, 2009~~ September 8, 2009 The rule requiring E-Verify for federal contractors was previously slated to take effect on January 15, 2009. On January 9, 2009, the rule was suspended until February 20, 2009. On January 28, 2009, the rule was suspended to May 21, 2009. The US Chamber has settled its suit against the E-Verify requirements and the E-Verify will go into effect on September 8, 2009. January 9, 2009 Several business groups, including the U.S. Chamber of Commerce, filed a lawsuit last week in the U.S. District Court for the District of Maryland seeking to have the court rule that the E-Verify regulations are unconstitutional. The court immediately ordered the U.S. government and the business groups to confer by next Monday to see if some compromise could be reached regarding the January 15 effective date. The parties have agreed to postpone the effective date to February 20. In the meantime, they will present their legal arguments to the court, which is expected to rule before February 20 on whether the regulations can withstand a constitutional challenge. Original Notice: On June 6, 2008, the President issued 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,” providing that “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: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) 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. Some of the more common questions are: 1. What is E-Verify, how does it work, and why do federal contractors have to enroll in E - Verify? E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship. Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and Social Security Administration (SSA) databases. 2. As a current or prospective federal contractor, am I required by the final rule to enroll in E-Verify now? The final rule applies to solicitations issued and contracts awarded after the effective date of the final rule in accordance with FAR 1.108(d). The final rule will be effective on January 15, 2009. All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the effective date. Under the final rule, 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. If you have already enrolled in E-Verify and you are awarded a federal contract after January 15, 2009, you will need to update your company profile through the “Maintain Company” page once the contract has been awarded. Once you designate your organization as a federal contractor, all E-Verify users at your company will need to take a federal contractor tutorial that explains the new policies and features that are unique to federal contractors. 3. My company was just awarded a federal contract and the rule is now in effect. When is my company required to enroll in E-Verify? When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E - Verify program within 30 calendar days of the contract or subcontract award date. Usage of E-Verify also applies to indefinite-delivery/indefinite-quantity contracts modified after the January 15^th, 2009 effective date of the rule on a bilateral basis in accordance with FAR 1.1 08(d)(3) to include the clause for future orders. The FAR rule provides that if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial, then the contract should be modified to include the clause. 4. How do I enroll my company in E-Verify? Before you can start using E-Verify, you need to enroll your company in the program. When you enroll your company, you will be asked to provide basic contact information for your company and agree to follow the rules of the program. At the end of the enrollment process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between your company and DHS. Please click here to begin the enrollment process for your company: https://www.visdhs.com/employerregistration During the E-Verify company enrollment process, you will be asked “Which category best describes your organization?” If you have been awarded a federal contract after January 15, 2009, you should select “federal contractor” from the drop-down box. Once you have indicated that you are a federal contractor, the system will then prompt you to identify the federal contractor category (e.g., institutions of higher education; state and local governments and governments of federally recognized Indian tribes; and certain sureties) that best describes your organization along with what groups of your current employees you plan to verify (i.e., current employees assigned to the federal contract or your entire workforce). Once you have completed the enrollment process, USCIS will review your information and activate your account. After the account is activated, you will receive an email with your login instructions, user ID, and password. 5. The proposed FAR rule would require federal contractors to use E-Verify for both new hires and existing employees who work on a new federal contract. Does the federal government use E-Verify (or otherwise verify work authorization) for both new hires and existing employees? Yes. Federal agencies verify employment eligibility of new and existing employees. In most instances, the federal government goes well beyond an E-Verify check to confirm work eligibility as part of a variety of suitability and other background checks that are required to be performed on federal employees. These background checks may include, but are not limited to: FBI fingerprint and name check; Checks against local law enforcement databases; Written inquiries to educational institutions, previous employers, and neighbors; Credit check; Checks to verify name, SSN, date of birth, and citizenship; and Checks against other federal and private data sources. For all new hires, federal agencies are required to use E-Verify to verify their employment eligibility. Additionally, many new hires also subsequently undergo background investigations and an FBI fingerprint and name check. For both new and existing employees, federal agencies are required by Homeland Security Presidential Directive – 12, “Policy for a Common Identification Standard for Federal Employees and Contractors” to follow certain credentialing standards prior to issuing personal identity verification cards. These standards include conducting a background investigation which includes verification of name, DOB, and SSN (among other data points) against federal and private data sources. This includes a check against Social Security Administration (SSA) records to validate social security numbers. Additionally, these standards require verification of work authorization for non-U.S. citizens against federal immigration databases. 6. How much will it cost my company to enroll in E-Verify? Nothing; E-Verify is free. It is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. Types of Federal Contracts Affected 1. What is the E-Verify clause? The rule requires the insertion of the E-Verify clause into applicable federal contracts, committing Government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to any given federal contract. 2. What is the acquisition threshold for this rule? The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000). 3. Does the rule apply to subcontracts? The rule only covers subcontractors if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. 4. Does the rule extend to contracts outside the United States ? The rule applies only to employees working in the United States , which is currently defined to include the fifty States and the District of Columbia , Guam, Puerto Rico , and the U.S. Virgin Islands. 5. Does the rule apply to existing indefinite-delivery/indefinite-quantity contracts? Existing indefinite-delivery/indefinite-quantity contracts should be modified by Contracting Officers on a bilateral basis in accordance with FAR 1.1 08(d)(3), to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial. EMPLOYEES AFFECTED BY THE RULE Employees Required to be Verified Using E-Verify 1. As a federal contractor, which employees may I verify through the E-Verify system? As a federal contractor participant in E-Verify, you are required to use E-Verify for: All new employees, following completion of the Employment Eligibility Verification Form I-9 (Form I-9); and All existing employees who are classified as “employees assigned to the contract.” Employees whom you have already verified through E-Verify should not be re-verified. However, an employee’s previous employment authorization through E-Verify from another employer does not satisfy your obligation to use E-Verify once you have hired them. 2. What is an “employee assigned to the federal contract”? The rule defines an “employee assigned to the federal contract” as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract. 3. My employee is working on a contract for a minimal amount of time. Is he or she subject to E-Verify? Yes. The rule does not exempt employees based on the intermittent nature of the work or the length of time spent performing the work. For additional information and requirements, use the following link. E verify Requirements
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