Effective today, companies that contract/subcontract with the Federal Government must use the E-Verify system to confirm that their employees can work in the U.S. legally. The regulation is not limited to American Recovery and Reinvestment Act of 2009 (“ARRA”) stimulus funds, but to all appropriations contracts with projects [exceeding $100,000 and for subcontractors with projects exceeding $3,000] with the federal government beginning September 8 – with some very limited exceptions.
Accordingly, American companies which contract with the federal government for goods or services (including construction contracts) will likely see existing contracts modified to require E-Verify review of (i) all persons hired during the contract term and (ii) all persons assigned by the contractor to perform work on the federal contract.
Practically speaking, what does this mean for your business?
Businesses already enrolled in E-Verify for more than 90 days are required to continue to initiate verification of newly hired employees within three business days of their start date, but have 90 days from the effective award date to begin using E-Verify for each employee already on their staff who is performing work upon an existing federal contract. (Any transition to using the system as a federal contractor does not allow you to stop using E-Verify for its new hires on the standard three-day schedule).
For businesses not yet enrolled, the contractor and any covered subcontractor will be required to enroll in E-Verify within 30 calendar days of the contract or subcontract award date. New enrollees will be provided an additional 90 days — for a sum total of 120 days — to enroll and initiate verification queries for employees already on their staffs assigned to fulfill a federal contract and to begin using the system to verify all newly hired employees.
Why should employers care about this regulation?
USCIS is “data mining” E-Verify, resulting in the identification of compliance failures, such as the failure of an employer to E-verify all employees or failure to terminate employees after a final non-confirmation of employment eligibility. Such monitoring will result in referrals to Immigration and Customs Enforcement (“ICE”) for follow-up inspections.
Accordingly, non-compliant employers (but, more commonly unrepresented businesses) may increase the prospect of an ICE inspection.
E-Verify scheduled to sunset on September 30, 2009
Although the District Court recently dismissed the Chambers’ emergent motion seeking to enjoin the mandatory implementation of the E-Verify rule pending appeal, another potential obstacle may lie ahead for the E-Verify rule – it is currently scheduled to expire on September 30 under a sunset provision unless Congress takes action before then.
The Senate has already passed an amendment that would permanently reauthorize the program and require federal contractors and subcontractors to use the program in order to verify that all new hires and existing employees directly performing work under the terms of the contract be authorized to work in the United States. The House approved a two-year extension of E-Verify when it passed the Homeland Security Appropriations bill in a 389-37 vote. However, the bills have yet to be reconciled in a conference committee.
Should you have any further questions regarding your business’ present obligations with respect to E-Verify, please do not hesitate to contact us.