New Employment Eligibility Rules Take Effect
McGrath, Dorn C., Lurie, Dawn M., National Defense
As of Sept. 8, contractors and subcontractors must focus attention on the new "E-Verify" requirements to confirm employment eligibility of all newly hired employees and all employees assigned to federal government contracts.
Since 1986, it has been illegal to hire employees not authorized to
work in the United States. Many government contractors adopted document-based systems, completing a U.S. Citizenship and Immigration Services (USCIS) Form I-9 for all newly hired employees to verify their identity and authorization to work. Established as a pilot program in 1996, E-Verify is an Internet-based system operated by USCIS in cooperation with the Social Security Administration, which some contractors have used voluntarily to electronically submit 1-9 information to verify employment eligibility.
Government contracts awarded on or after Sept. 8, will require most contractors to use E-Verify under a new clause (FAR 52.222-54). Moreover, E-Verify now requires contractors and subcontractors to "re-verify" many existing employees as well as new hires.
The E-Verify clause requires contractors to: enroll in E-Verify; use E-Verify for new hires; use E-Verify for existing employees assigned to a government contract; and include the E-Verify requirements in subcontracts for certain commercial or non-commercial services and construction.
If not already enrolled in E-Verify, the contractor has 30 calendar days from contract award to enroll in E-Verify. Within 90 days of enrollment, all new hires must be processed through the system within three days from the date of hire, whether or not they are assigned to the government contract. Additionally, each existing employee assigned to the contract must be verified within 90 calendar days of enrollment, or 30 days from the employee's assignment to the contract, whichever is later.
If the contractor already was enrolled in E-Verify, in addition to the three-day new hire requirement, all existing employees assigned to the contract must be run through the system within 90 days of the contract award, or 30 days from assignment to the contract.
Instead of implementing E-Verify to the extent necessary for each contract, businesses may elect to verify all employees, including existing workers not currently assigned to a government contract.
The timeline for this possibility allows contractors to initiate verification of all existing employees within 180 calendar days of notifying USCIS of this decision. Unlike other recent government contract compliance hales, such as the "Contractor Business Ethics Compliance Program and Disclosure Requirements," the E-Verify rules do not modify coverage for small businesses.
Government databases are used to compare a worker's I-9 data against more than 400 million records. Employers can expect a "tentative non-confirmation" rate of about 3 percent requiring additional follow up to resolve discrepancies for these employees.
An employee may contest a non-confirmation by contacting the Department of Homeland Security or Social Security within eight business days of receiving written notice. …