8/27/09 - Judge Alexander Williams, Jr., of the US District Court for the District of Maryland has upheld the Department of Homeland Security’s E-Verify federal contractor rule, which requires certain federal contractors and subcontractors to use the E-Verify electronic verification system to verify the employment eligibility of new and current employees. The rule is scheduled to go into effect on September 8, 2009.

The rule was proposed by President George W. Bush on June 6, 2008 (Executive Order 12989) but immediately challenged in court. In December 2008, several business groups including the U.S. Chamber of Commerce filed suit challenging the legality of the order. While the case was pending, the Obama Administration delayed the rule's implementation four times before announcing in July 2009 that the rule would go forward.

Starting September 8, federal contracts awarded and solicitations with a period of performance longer than 120 days and a value above $100,000 must include a clause requiring federal contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction that flow from those prime contracts. These contractors and subcontractors must confirm that all new hires and existing employees directly performing work under federal contracts are authorized to work in the United States.

The  service provided by Verify I-9, LLC, a Designated Agent of the federal E-Verify program, meets the requirements of the federal contractor rule.

As a current or prospective federal contractor, am I required by the final rule to enroll in E-Verify now?

The final rule applies to solicitations issued and contracts awarded after the applicability date of the final rule in accordance with FAR 1.108(d).  The final rule will become applicable to contractors on September 8, 2009. All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the applicability date.  Under the final rule, employers are required to enroll in E-Verify if and when they are awarded a federal contract or subcontract that requires participation in E-Verify as a term of the contract.

If you wish to enroll in E-Verify before the applicability date of this rule you may do so now.  Enrolling now may help you become familiar with the process and may make it easier for you to use E-Verify if and when you are awarded a federal contract.  Verification of employees through E-Verify is limited to new hires only, unless you are a federal contractor who has been awarded a contract on or after September 8, 2009.

If you have already enrolled in E-Verify directly and you are awarded a federal contract after September 8, 2009, you will need to update your company profile and complete a tutorial. If you are our client, simply notify us when you are awarded a federal contract. We will update your status and inform you of any changes in the verification process resulting from your change of status.

My company was just awarded a federal contract and the rule is now in effect. When is my company required to enroll in E-Verify?

When a contractor wins the bid on a federal contract that contains the FAR E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date. 

Usage of E-Verify also applies to indefinite-delivery/indefinite-quantity contracts modified after the September 8, 2009 effective date of the rule on a bilateral basis in accordance with FAR 1.108(d)(3) to include the clause for future orders.  The FAR rule provides that if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial, then the contract should be modified to include the clause.

How do I enroll my company in E-Verify?

To enroll in our "no headaches" verification program, complete this form.  As part of the signup process, you will be required to sign a Memorandum of Understanding (MOU) that provides the terms of agreement between your company, Verify I-9, LLC and DHS.

In addition to basic company and contact data, you will be asked “Which category best describes your organization?”  If you have been awarded a federal contract after September 8, 2009, you should select “federal contractor” from the drop-down box; then, indicate what groups of your current employees you plan to verify (i.e., current employees assigned to the federal contract or your entire workforce).

We will complete the enrollment process on your behalf, providing the information and documentation that you need to begin your verification program. If you will be using our web-based system, we will provide training using an online training system. And, as always, we are available to provide guidance and assistance as needed.

How much will it cost my company to enroll in E-Verify?

Verify I-9, LLC offers a "no headaches" verification program with no setup fee and no monthly fees. In other words, it costs nothing for most businesses to begin a verification program. Larger employers (more than 10 new hires a month) will benefit from our web-based verification system. The minimal, one-time setup fee covers the cost of initial training, but is quickly recouped through a discounted verification charge.

Some national federal contractor organizations are charging its members a setup fee of $100 and annual fees of $300 or more, regardless of how many (or how few) verifications are actually performed. If you are a member of a national organization, you should know that you are not required to use their service. You can enroll in E-Verify directly or hire a Designated Agent like Verify I-9, LLC and enroll in our "no headaches" program for free.

My company is required to use E-Verify as a federal contractor for the first time. How do I proceed?

If your company has not yet enrolled in E-Verify, then you have 30 days from the date of contract award to enroll and 90 days from the date you enroll with E-Verify to initiate verification queries for employees already on your staff who will be working on the contract and to begin using the system to verify newly hired employees.

After this 90-day phase-in period, you will be required to initiate verification of each newly hired employee within 3 business days after their start date. To meet this three-day requirement, employers may initiate verification of a newly hired employee before their start date if the employee has accepted the job offer and filled out the Form I-9.  Please note that pre-screening of job applicants is not allowed; the system may be used for new hires only after the employee has been offered the job and has accepted.  Please also remember that you must continue to use E-Verify for the life of the contract for all your new hires, whether or not they are employees assigned to the contract, unless certain exceptions apply.

We recommend that you begin your verification of new hires as soon as possible, especially if you do business in a state (like Arizona), county or city that has a local E-Verify requirement.

My company is already enrolled in E-Verify, but we did not enroll as a federal contractor.  Does my company need to re-enroll to comply with this rule?

No. You do not need to enroll again, but you will need to update your company profile. In addition, all employees submitting I-9 data must complete a tutorial. If you are our client, simply notify us immediately if you are awarded a federal contract or will subcontract on a federal contract. We will update your status as a federal contractor and provide the information that you need to proceed under the modified guidelines.

My company has already been using E-Verify for more than 90 days. When must we begin verifying existing employees assigned to work on a federal contract that contains the FAR E-Verify clause?

If your company has been enrolled in E-Verify for more than 90 days, then you are required to continue to initiate verification of newly hired employees within three business days of their start date, but you have 90 days from the contract award date to begin using E-Verify for each employee already on your staff who are assigned to the contract.   Your transition to using the system as a federal contractor does not allow you to stop using E-Verify for your new hires on the standard three-day schedule.  The 90-day window in the FAR rule to start using E-Verify for new hires applies to new E-Verify users and is intended to provide additional implementation time.

Please remember that you are required to continue using E-Verify throughout the duration of your federal contract for all new hires, whether or not they are employees assigned to the contract, unless your company falls under one of the exceptions to this policy.

[Source: DHS]