October 2009 : Government Affairs

Words: Dan Kamys

Government Affairs

E-Verify Applicability to Federal Contractors Phase-in began September 8

E-Verify is a free, Web-based system operated by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and deters unauthorized individuals from attempting to work and helps employers avoid employing unauthorized aliens.

The Federal Acquisition Regulation E-Verify (FAR E-Verify) began its roll out Sept. 8.

To whom does Federal Contractor E-Verify (FAR E-Verify) apply?

Prime Contracts: Companies awarded federal prime contracts above $100,000 and have a performance period of more than 120 days.

Subcontracts: The rule covers subcontractors only if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value more than $3,000. Indefinite-Delivery/Indefinite-Quantity Contracts: Existing indefinite-delivery/indefinite-quantity contracts should be modified by Contracting Officers on a bilateral basis in accordance with FAR 1.108(d)(3), to include the clause for future orders 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.

Exemptions from the E-Verify requirement

  • Contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services;

  • Prime Contracts of less than the simplified acquisition threshold ($100,000);

  • Prime Contracts less than 120 days;

  • Contracts where all work is performed outside the United States.

What does an employer have to do to comply with Federal Contractor E-Verify?

If you are new to E-Verify or have been enrolled for less than 90 days:

30 days Companies awarded a federal contract or subcontract with the E-Verify clause after Sept. 8 will be required to enroll in E-Verify within 30 calendar days of the federal contract or subcontract award date. 90 days After a company enrolls in E-Verify, the company has 90 days from the date on which the company enrolled 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. 3 days After this 90-day phase-in period, the company will be required to initiate verification of each newly hired employee within three business days after his first date of paid employment. If your company has been enrolled in E-Verify for more than 90 days: You are required to continue to initiate verification of newly hired employees within three business days of their first day of paid employment, but you have 90 days from the contract award date to begin using E-Verify for each employee already on your staff who is assigned to the contract. If you enrolled in E-Verify prior to Sept. 8, you will need to update your company profile on the E-Verify site after Sept. 8 and select the option indicating you are a federal contractor to ensure compliance.

May a federal contractor verify its entire workforce?

Yes. If your company elects to do this, you must notify DHS by updating your company profile if you are a current participant or during enrollment if you are a new participant. A federal contractor that chooses this must initiate an E-Verify query for each employee in the contractor’s entire work force within 180 days of updating its company profile.

What to expect in the future?

We are anticipating additional clarifications to the system and additional guidance. This regulation is here to stay in one form or another. DHS Secretary Janet Napolitano has announced the Administration’s continued support for FAR E-Verify regulation and the use of E-Verify to check employee work authorization. Congress also has pending legislation extending and possibly broadening the scope of E-Verify.

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