E-Verify Rule for Federal Contractors To Go Into Effect on September 8, 2009
(July 15, 2009)

After months of joint litigation by both business and labor, the Department of Homeland Security (DHS) has announced plans to implement the rule requiring federal agency contracts and subcontracts to include a provision mandating the use of E-Verify.   On July 8, 2009 DHS announced: “after careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.”

  E-Verify is an Internet-based program that allows employers to electronically verify the work authorization information a worker presents by accessing information in databases maintained by the Social Security Administration (SSA) and DHS. According to the final rule, in the initial fiscal year, approximately 168,624 contractors and subcontractors and 3.8 million workers will be affected.

The rule requires that all federal solicitations and contracts over $100,000, lasting for a period of 120 days or more, include a provision that contractors:

1.  Enroll in E-Verify;
2.  Use E-Verify for all new hires in the U.S.;
3.  Use E-Verify for all workers assigned to the contract; and
4.  Include a provision in certain subcontracts for commercial or noncommercial services and construction that are over $3,000, and that last for a period of more than 30 days, requiring use of E-Verify.

Contractors also may reverify all existing workers hired after November 6, 1986, whether or not they are assigned to the contract. If a contractor takes this option, it must notify DHS and initiate verification within 180 days of notice to DHS or enrollment in E-Verify. The legality of this provision is particularly questionable, as the statute currently only authorizes the use of the pilot to verify new hires.

DHS and SSA can terminate a federal contractor from using E-Verify if the contractor violates the terms of the memorandum of understanding that it signs with DHS and SSA.


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