Executive Order Requires Federal Contractor Participation in E-Verify: DHS Offers Additional Guidance
June 18, 2008
President Bush recently signed an amendment to Executive Order 12989 requiring federal contractors to participate in the government’s E-Verify program. E-Verify is an internet based program operated by the Department of Homeland Security (“DHS”) in partnership with the Social Security Administration (“SSA”) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The system allows employers to check the work status of new hires online by comparing information from an employee's I-9 form against SSA and DHS databases.
The Executive Order will require those employers that have contracts with the federal government to use the E-Verify program to confirm the employment eligibility of (1) all individuals hired during the term of the federal contract to perform employment duties within the United States and (2) all individuals assigned by the federal contractor to perform work within the United States on the federal contract.
Several states, including Arizona, Colorado, Mississippi, and South Carolina have required certain employers to participate in the E-Verify program, but this is the first time that the federal government has required private employer participation in the program.
The Executive Order does not state when this new requirement for federal contractors will take effect. The Executive Order, however, authorizes the agencies responsible for the Federal Acquisition Regulations to issue the rules and/or regulations necessary to implement the Executive Order.
On June 12, 2008, the agencies responsible for the Federal Acquisition Regulations issued a proposed rule setting forth guidance regarding the implementation of the Executive Order. The proposed rule clarifies that the Executive Order would apply to federal contracts of greater than $3,000.00. The proposed rule also extends the E-Verify obligations to federal sub-contractors with sub-contracts greater than $3,000.00. The proposed rule will remain open for public comment for 60 days, after which the government will then likely soon issue a final rule. It is anticipated that the requirements contained within the Executive Order will become effective upon implementation of the final rule.
The E-Verify program has proven controversial since its inception because of complaints that the results generated by the E-Verify database are not always accurate. For example, there have been reports that certain employees eligible to work in the United States have been falsely reported to be ineligible to work, causing delays for both the employer and the individual employee.
The government, however, maintains that the program is effective at reducing unauthorized employment and that the results generated by the program are 99.5% accurate. The DHS clarified this week that over 95% of tentative non-eligibility to work confirmations have been resolved on the same day that the employee contacts the Social Security Administration. The DHS also clarified that when an employee disputes the accuracy of a tentative non-eligibility to work confirmation and the situation cannot be immediately resolved, the DHS will place the employee’s case into a continuance while the employee works to resolved the discrepancy and the employer is prohibited from taking action against the employee until questions surrounding the employee’s eligibility can be resolved.
The United States Citizenship and Immigration Services has also issued a Question & Answer sheet designed to assist federal contractors in understanding their new obligations under the Executive Order. Importantly, these Questions & Answers clarify that participation in the E-Verify program does not provide an absolute “safe harbor” for employers who, despite participation in the program, employ unauthorized aliens. Instead, an employer who verifies work authorization through the E-Verify program is permitted a rebuttable presumption that it has not knowingly hired an unauthorized alien. The Questions and Answers also clarify that employers participating in the E-Verify program remain responsible for full compliance with their obligations under the traditional I-9 employment verification process.
The Executive Order will require those employers that have contracts with the federal government to use the E-Verify program to confirm the employment eligibility of (1) all individuals hired during the term of the federal contract to perform employment duties within the United States and (2) all individuals assigned by the federal contractor to perform work within the United States on the federal contract.
Several states, including Arizona, Colorado, Mississippi, and South Carolina have required certain employers to participate in the E-Verify program, but this is the first time that the federal government has required private employer participation in the program.
The Executive Order does not state when this new requirement for federal contractors will take effect. The Executive Order, however, authorizes the agencies responsible for the Federal Acquisition Regulations to issue the rules and/or regulations necessary to implement the Executive Order.
On June 12, 2008, the agencies responsible for the Federal Acquisition Regulations issued a proposed rule setting forth guidance regarding the implementation of the Executive Order. The proposed rule clarifies that the Executive Order would apply to federal contracts of greater than $3,000.00. The proposed rule also extends the E-Verify obligations to federal sub-contractors with sub-contracts greater than $3,000.00. The proposed rule will remain open for public comment for 60 days, after which the government will then likely soon issue a final rule. It is anticipated that the requirements contained within the Executive Order will become effective upon implementation of the final rule.
The E-Verify program has proven controversial since its inception because of complaints that the results generated by the E-Verify database are not always accurate. For example, there have been reports that certain employees eligible to work in the United States have been falsely reported to be ineligible to work, causing delays for both the employer and the individual employee.
The government, however, maintains that the program is effective at reducing unauthorized employment and that the results generated by the program are 99.5% accurate. The DHS clarified this week that over 95% of tentative non-eligibility to work confirmations have been resolved on the same day that the employee contacts the Social Security Administration. The DHS also clarified that when an employee disputes the accuracy of a tentative non-eligibility to work confirmation and the situation cannot be immediately resolved, the DHS will place the employee’s case into a continuance while the employee works to resolved the discrepancy and the employer is prohibited from taking action against the employee until questions surrounding the employee’s eligibility can be resolved.
The United States Citizenship and Immigration Services has also issued a Question & Answer sheet designed to assist federal contractors in understanding their new obligations under the Executive Order. Importantly, these Questions & Answers clarify that participation in the E-Verify program does not provide an absolute “safe harbor” for employers who, despite participation in the program, employ unauthorized aliens. Instead, an employer who verifies work authorization through the E-Verify program is permitted a rebuttable presumption that it has not knowingly hired an unauthorized alien. The Questions and Answers also clarify that employers participating in the E-Verify program remain responsible for full compliance with their obligations under the traditional I-9 employment verification process.
