For a copy of the new rule, click here.

For a copy of the USCIS E-Verify FAQ, click here.

Summary of E-Verify system

The E-Verify system operates as follows: Upon hiring a new employee and completing the Form I-9 to ensure employment authorization (required for all new hires regardless of E-Verify participation), the employer submits information over the Internet taken from the Form I-9, including: the employee's name and date of birth, Social Security Number (SSN), citizenship status declared by the employee, and other information from documents submitted by the employee. (In addition, in 2007, E-Verify introduced its Photo Screening Tool that allows the employer to compare the photographs on documents presented by certain non-citizen employees against photographs stored in DHS immigration databases, which are shown on the employer's computer screen.)

The E-Verify query will establish that an employee is authorized to work, or the employer will receive a "tentative non-confirmation" (TNC). The employee must be notified of the TNC and given an opportunity to contest it with the SSA or DHS. Non-contesting employees may not continue to work. Contesting employees may continue to work until the employer receives final confirmation from E-Verify regarding the employee's authorization status. According to DHS, employers ran more than four million queries from January to June 2008. Of those queries, DHS reports that 99.5 percent of qualified employees have been cleared automatically by E-Verify; however, employer groups have independently reported significantly lower performance statistics.

Summary of the new rule

The new rule inserts a clause into Federal contracts committing government contractors to use the USCIS E-Verify program to verify that all of the contractors’ new hires, and all employees (existing and new) directly performing work under Federal contracts, are authorized to work in the United States. The final rule:

• Exempts contracts that are for: Commercially available off-the-shelf (COTS) items; and items that would be COTS items but for minor modifications.
• Requires inclusion of the clause in subcontracts over $3,000 for services or for construction.
• Requires contractors and subcontractors to use E-Verify to confirm the employment eligibility of all existing employees who are directly performing work under the covered contract.
• Applies to solicitations issued and contracts awarded after the effective date of the final rule in accordance with FAR 1.108(d). Under the final rule, Departments and agencies should, in accordance with FAR 17 1.108(d)(3), amend—on a bilateral basis—existing indefinite delivery/indefinite-quantity contracts to include the clause for future orders if the remaining period of performance extends at least six months after the effective date of the final rule.
• In exceptional circumstances, allows a head of the contracting activity to waive the requirement to include the clause.
• Significantly Extended Timelines. The final rule amends the proposed rule to permit Federal contractors participating in the E-Verify program for the first time are given 90 calendar days from enrollment to begin using the system for new and existing employees. Contractors must initiate verification of existing employees who have not previously gone through the E-Verify system within 30 days of being newly assigned to a covered Federal contract. Contractors already enrolled and using the program as Federal contractors will have the same extended timeframe to initiate verification of employees assigned to the contract, but the time limits will be measured from contract award date instead of from the contractor’s E-Verify enrollment date. With regard to verification of new hires, a contractor that has already been enrolled as a Federal contractor for 90 calendar days or more will have the standard 3 business days from the date of hire to initiate verification of new hires. Those contractors that have been enrolled in the program for less than 90 calendar days will have 90 calendar days from the date of enrollment as a Federal contractor to initiate verification of new hires.
• All Existing Employees Option. The final rule provides contractors the option of verifying all employees of the contractor, including any existing employees not currently assigned to a Government contract. A contractor that chooses to exercise this option must notify DHS and must initiate verifications for the contractor’s entire workforce within 180 days of such notice to DHS.
• Employee assigned to the contract—The final rule clarifies that employees who normally perform support work, such as general company administration or indirect or overhead functions, and that do not perform any substantial duties applicable to an individual contract, are not considered to be directly performing work under the contract.

Many details are yet to be worked out, and it is not clear whether the new Obama administration will take action to rescind or modify the rule after January 20th. Tafapolsky & Smith will continue to monitor progress and report new developments as they occur.

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