By Robert J. Barry

Effective January 15, 2009, the Federal Acquisition Regulations have been amended to make the Department of Homeland Security (DHS) E-Verify System mandatory for certain federal contractors. See 48 C.F.R. Parts 2, 22.180 and 52.222-54, 73 F.R. 67703 et seq. (Nov. 14, 2008). The already available program has been a supplement but not an alternative to I-9 verification, the employment eligibility system in place since 1986. E-Verify is a free, internet-based system that allows enrolled employers, not just federal contractors, to confirm the employment eligibility of new hires within seconds. As noted by DHS Secretary Michael Chertoff, E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires.

The early success of E-Verify has been acknowledged by both employers and federal agencies. The government believes that thousands of the approximately 12 million undocumented aliens who have been permitted to work under the I-9 system will now be identified. The early success of the system has led the government to impose E-Verify as a mandatory requirement on federal contractors with prime contracts lasting at least 120 days and worth at least $100,000, and on subcontractors with contracts worth at least $3,000 flowing from covered primes.

New federal contracts and requests for proposals within the above parameters will specify the E-Verify requirement. Companies that are awarded contracts subsequent to January 15 will have 30 days after award to enroll in the E-Verify System and will then have 90 additional days to begin e-verifying. Once in use, contractors will be required to e-verify the status of all persons hired since 1986 if designated to support a covered contract. New hires assigned to a covered contract must be e-verified within three business days as employers generally have done when using the I-9. Importantly, employers may use E-Verify for persons who have accepted employment but, in response to concerns about possible discrimination, may not use the system to verify the eligibility of applicants. Civil money penalties apply for those contractors failing to comply.

Like all other employers, federal contractors may also wish to e-verify new hires and members of their workforce who are not working in direct support of a contract. The regulations permit employers to e-verify all employees working in support of a covered contract or, alternatively, all employees. This does not, however, eliminate the I-9 requirement. Contractors may not selectively e-verify some employees who are working off contract and not others.

Contractors and other employers seeking more information may access the DHS, United States Citizenship and Immigration Services website. This can be reached at www.uscis.gov and clicking E-Verify, at www.dhs.gov/E-Verify, or by Googling e-verify getting started. Members of the Kaufman & Canoles Employment Law Team are also available to provide any necessary assistance.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.