Proposed Regulation Requiring Federal Contractors to Use E-Verify
On June 6, 2008, President Bush signed an amendment to Executive Order 12989 that directed all federal departments and agencies to require contractors, as a condition of future federal contracts, to use E-Verify. E-Verify is a free, internet-based system that allows employers who are enrolled in the E-Verify program to confirm the legal status of new employees. On June 9, 2008, pursuant to the President’s executive order, the Department of Homeland Security (“DHS”) designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use. In order to finalize the issue and make this requirement an actual law, notice of this proposed rule requiring federal contractors to use E-Verify was published in the Federal Register on June 12, 2008. The regulation is currently open for public comment until August 12, 2008. Once the public comment period expires, the rule will either be implemented in its current form, or modified based upon the public comments received. Until the regulation is actually enacted, however, federal contractors are not legally required to use E-Verify.
The current form of the proposed regulation provides that any entity who provides the federal government with over $3,000 worth of goods or services in the United States must use E-Verify for all new employees, even those who do not actually work on the federal contract. It also requires such entities to identify all employees who currently work on any federal contract and verify their legal status through E-Verify as well. The only entities excluded from this regulation are those who perform work for the federal government outside of the United States, provide less than $3,000 of goods or services, or provide contracts for commercial off the shelf supplies. Once the regulation is implemented, the included entities will have 30 days to enroll in the E-Verify program and then another 30 days to verify all current employees working on federal contracts in addition to all new hires. Thereafter, such entities must verify the legal status of all new employees through E-Verify within three days after the new employees are hired. The mandatory use of E-Verify will be a provision included in all federal contracts.
In the event the proposed regulation is implemented after the public comment period expires and federal contractors are required to use E-Verify, this does not alleviate their responsibility to still complete the I-9 form for all new hires. If federal contractors complete both the I-9 form and thereafter verify the employee’s legal status through E-Verify, it will create a rebuttable presumption that the employer did not knowingly hire an unauthorized alien. Once the public comment period expires for the proposed regulation, we will provide an update on the status of the regulation.