On June 6, 2008, President George W. Bush signed an amendment to Executive Order 12989 requiring the more than 200,000 federal contractors to use E-Verify, the Department of Homeland Security’s oft-criticized employment eligibility electronic verification system. While several states require employers to use E-Verify, this is the first time that the federal government has mandated private employer participation in the program.
The amendment to the Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of:
- All persons hired during the contract term by the contractor to perform employment duties within the United States; and
- All persons assigned by the contractor to perform work within the United States on the federal contract.
The Department of Homeland Security has designated E-Verify as that electronic verification system. Agencies responsible for the Federal Acquisition Regulations sent a Notice of Proposed Rulemaking (NPRM) to the Federal Register on June 9th soliciting public comment on proposed changes to these regulations. Publication may take several days. Thereafter, comments will be accepted for 60 days. After the comment period is over, the DHS will publish a final rule.
The Secretary of Homeland Security and the U.S. Attorney General will be charged with the administration and enforcement of amended Executive Order 12989. Among other things, the implementing rule should clarify whether: 1) the Office of Federal Contract Compliance Programs will play a role in the administration and enforcement of the amended provisions; 2) whether the amended provisions will apply to all federal contracts, or if there will be a monetary threshold similar to the affirmative action plan requirements (e.g. federal contracts of $50,000 or more); and 3) whether the obligation will apply to subcontractors.
ABOUT E-Verify
E-Verify is a voluntary, Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS), a part of the DHS, in partnership with the Social Security Administration (SSA), that allows employers to verify the employment eligibility of new hires. In addition to use of the E-Verify system and compliance with its regulations, employers still must comply with the I-9 Employment Verification requirements.
E-Verify electronically compares employee information taken from the Form I-9 (the paper-based employment eligibility verification form used for all new hires) against more than 425 million records in SSA's database and more than 60 million records in DHS' immigration databases. While some states have mandated use of this system for certain employers under state law, voluntary adoption has been slow due to concerns for the accuracy of the government checks, and because of the additional administrative burden placed on employers.
The verification process consists of the following steps:
- Completing the Form I-9: Employee and employer complete Form I-9 (Section 1 – no later than the first day at work; Section 2 – no later than the third day at work).
- Submitting an Initial Query to E-Verify: Employer enters Form I-9 information into E-Verify system no later than the third business day after the employee begins work. Employers must follow E-Verify procedures for all new hires while participating in the program and may not verify selectively.
- E-Verify checks SSA and DHS' immigration databases.
- E-Verify responds – Employment Authorized or Tentative Non-Confirmation.
- Employer notifies an employee of a Tentative Non-Confirmation response, if applicable.
- Employer submits any new information provided by employee.
- Final determination of legal authorization to work.
RECOMMENDED ACTIONS
While these requirements will not become effective until an implementing rule is published, employers should:
- Inventory current federal contracts to establish which locations and employees may be impacted by this rule.
- Review current I-9 forms for any errors or missing information. Correct any forms that have not been completed correctly.
- Ensure that all personnel are trained on the proper completion and retention of I-9 forms.
As always, Jackson Lewis is available to assist with any of these items.
