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August 31, 2009
Articles
E-Verify Rule for Federal Contractors Becomes Effective September 8, 2009
The last legal hurdle to the implementation of the federal regulation that will require most government contractors to register with E-Verify was resolved on August 25 when the U.S. Chamber of Commerce’s lawsuit challenging the rule was dismissed. The rule will affect federal contractors awarded a new contract after September 8 that includes the E-Verify clause. This means that organizations are not required to register with E-Verify until they receive a contract which contains this clause. The clause will be included in federal contracts in excess of $100,000 and subcontracts for services or construction in excess of $3,000, unless the contracts fall in one of these limited exceptions:
- The contract is for commercially available off the shelf (“COTS”) items
- The period of performance is 120 days or less; or
- All work is performed outside of the U.S.
Basic Requirements
The covered contractor/subcontractor must
- Enroll in E-Verify within 30 days of the contract award
- Sign the Memorandum of Understanding with the Social Security Administration (“SSA”) and Department of Homeland Security (“DHS”)
- Begin to use E-Verify within 90 days of enrollment, if the contractor/subcontractor has not previously been enrolled in E-Verify
- Verify employment eligibility for all new-hires no later than the 3rd business day after they start work. (Institutions of higher education are exempt from the requirement to verify all new hires.)
- Use E-Verify to confirm the employment eligibility of all existing employees who are directly engaged in performance of work under the contract. (An employer can choose to verify all employees if the election is made within 180 days.)
- Post a notice from DHS alerting employees and applicants that the employer is participating in the E-Verify program and an anti-discrimination notice from the Department of Justice.
Use of E-Verify
An employer must enter the information, as stated on the I-9 form, into the E-Verify website no later than the 3rd business day after the employee begins work. I-9 requirements remain the same, except that all “List B” identity documents must have a photograph. Once entered, the information will be checked against DHS and SSA databases.
According to the government, 96.9% of employees are automatically confirmed as work authorized either instantly or within 24 hours, requiring no employee/employer action.
However, if the employee’s information is not verified, the employer will receive a “Tentative Nonconfirmation Notice.”
The employer must then provide the employee with a “Notice to Employee of Tentative Nonconfirmation” which the employee has the right to contest. If the employee does not contest the notice, the employer must terminate the employee. If the worker contests the non-confirmation, the employer must give the employee a “Referral Letter” providing information on the next step the employee must take. The employee has eight federal work days to visit an SSA office or call USCIS to attempt to resolve the discrepancy.
An employer may not terminate an employee who is working to resolve the tentative non-confirmation with the appropriate federal agency. However, if an employer continues to employ an employee after receiving notice of final confirmation, there is a rebuttable presumption of unlawful hire.
An employer may not terminate an employee who is working to resolve the tentative nonconfirmation with the appropriate federal agency. However, if an employer continues to employ an employee after receiving notice of final confirmation, there is a rebuttable presumption of unlawful hire.
Do’s and Don’ts
- An employer must verify all new hires, both U.S. citizens and noncitizens, and may not verify selectively.
- An employer may not prescreen applicants for employment, or reverify employees who have temporary employment authorization.
- Federal contractors must verify those employees who are working directly on the government contract
- An employer may not terminate or take other adverse action against an employee based on a tentative non-confirmation.
Registering for E-Verify
Any employer can register to use E-Verify, although there are specific requirements (described above) that apply to federal contractors. The on-line site can be accessed at http://www.dhs.gov/files/programs/gc_1185221678150.shtm, which provides instructions for completing the registration process. If your organization is a federal contractor, that should be indicated.
State Contractors
An Executive Order requires contractors with contracts in excess of $50,000 with the state of Minnesota to use E-Verify.
If you have any questions about these requirements, please contact Penny Phillips or Le Phan.
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Penny Phillips, Attorney |
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Felhaber, Larson, Fenlon & Vogt, P.A. |
Felhaber, Larson, Fenlon & Vogt, P.A. |
www.felhaber.com |
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