USCIS issued a press release on January 29, 2009 stating that E-Verify enrollment will be required for most all federal contractors (and their subcontractors) as of May 21, 2009 (see www.uscis.gov). The original E-Verify rule implementation date of January 15, 2009 has been suspended twice - first until February 20, 2009 and now until May 21, 2009.

E-Verify Employment Eligibility Verification system enrollment is required within 30 days of a contract award or renewal.  There are a number of limited exemptions from the new regulation depending on: the term of the contract (less than 120 days), the value of the contract (less than $100,000), place of execution or performance (outside the U.S.), and for commercially available off-the-shelf items and related services.

The Department of Homeland Security’s (DHS) E-Verify system is, in short, an electronic verification system that validates the U.S. employment eligibility of a “new hire” employee with both Social Security Administration and DHS database records.  If the system cannot verify the employee’s U.S. work eligibility, the employer is notified and must take affirmative steps to confirm employment eligibility within strict timelines or face a presumption that they are knowingly employing unauthorized workers.  If employment eligibility cannot be confirmed, it may ultimately result in the termination of the employee.  E-Verify does NOT replace the I-9 Verification system, but supplements it. 

Normally, the E-Verify system is required of only “new hires” made after enrollment in the program.  However under this regulation, all “new hire” employees AND existing employees that are “assigned to the contract” by the federal contractor, or subcontractor, must be E-verified.  Further, the regulations permit the contracting employer to E-Verify its entire existing workforce as well, whether or not assigned to the federal contract.  Institutions of higher education may choose to E-Verify only those employees “assigned to the contract” whether they are new or existing employees.

Please advise your General Counsel, Contracts Officers, and Compliance Officers of this new regulation (FED REG Vol. 73 No. 221 11/14/2008).  Please note that E-Verify enrollment and administration is available from 3^rd party vendors and the process of enrollment may take in excess of 90 days.  You may access both this final rule and the E-verify program via www.uscis.gov website.  As of November 14^th, 2008, Executive Order 12989 is in effect as a final regulation amending the Federal Acquisition Regulations (FAR) 48 CFR Parts 2, 22, and 52.

NOTE:  If your company is affected by this new regulation please contact our office as soon as possible.  We do NOT recommend enrollment in E-verify until a complete I-9 audit has been completed; training performed and internal policies have been reviewed.