Government Requires That All Federal Contractors Use E-Verify

June 26, 2008

By Executive Order, dated June 9, 2008, the President has instructed all federal departments and agencies that enter into contracts to require, as a condition of each contract, that federal contractors use E-Verify for all individuals hired or assigned to perform work within the United States. E-Verify is the system maintained by the Department of Homeland Security to verify employment eligibility.

Verification Requirement Expanded

The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration issued a proposed rule in the June 12, 2008 edition of the Federal Register to implement the Executive Order by amending the Federal Acquisition Regulation. The proposed rule differs in one important respect from the general requirements for other E Verify users — the government will require the contractor not only to use the E-Verify system for its new hires, as is generally required, but will also require verification of current employees assigned to work in the United States under the covered federal contract.

Key E-Verify Requirements

E-Verify is an Internet-based system operated by the U.S. Citizenship and Immigration Services (“USCIS”), a part of the Department of Homeland Security, in partnership with the Social Security Administration (“SSA”). Under the system, once an employee and employer complete an I-9 employment eligibility form, the information from the form must be entered by the employer into the E-Verify website to be checked against information contained in SSA and USCIS databases. SSA verifies the name, social security number and date of birth and, if the employee has stated that he or she is a U.S. citizen, confirms whether that is the case. If so, the worker is employment-eligible. USCIS also verifies through database checks that non-U.S. citizen employees are authorized to work in the United States.

If the information provided by the worker matches the information in the databases, no further action is generally required. The employer records on the I-9 form the verification ID number and result, or prints a copy of the transaction record and retains it with the I-9 form. If the information cannot be verified, the employer must provide the individual with written notice and an opportunity to contest the non-confirmation. If the worker chooses to contest, the employer must also provide the applicant or employee with a referral letter, containing information needed for resolving the non-confirmation with the SSA. The worker then has eight (8) federal government workdays to resolve the discrepancy.

Employer Impact

  • The proposed rule would generally apply to all federal contracts or subcontracts of over $3,000, including subcontracts of over $3,000 for services or construction.
  • The rule applies to employment in the United States, defined as including the 50 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands.
  • The rule does not apply to work on U.S. embassies and military bases in foreign countries or any other employment outside the United States.
  • It also does not apply to any employee hired before November 6, 1986.

A contractor or subcontractor would have 30 days to enroll in the E-Verify program under the proposed rule. Although the Executive Order amendment is now law, it will not take effect with respect to federal contractors until final regulations are issued (i.e., after the August 11, 2008 comment period expires).

For further information or help in preparing your organization for compliance with these new requirements, please contact any member of the McGuireWoods Immigration, Labor & Employment or Employee Benefits Teams.