E-Verify Requirements for Federal Contractors

November 29th, 2012

Courtesy of Diana Tafur and Peter F. Asaad, Esq.

On Tuesday, November 27, 2012 United States Citizenship and Immigration Services (USCIS) held a webinar on the new E-Verify system federal contractors are now required to use in order to be in compliance with their contracts. Essentially E-Verify is an internet based system where federal contractors and subcontractors can electronically verify the employment eligibility of new and existing employees. To verify the employment eligibility of their employees, contractors must create an E-Verify profile and complete Form I-9s for their employees. Once a Form I-9 is submitted, the information is shared with the Department of Homeland Security and the Social Security Administration for verification upon which the contactor receives a response.

Who should verify:

Those required to use E-Verify are as follows: Prime contractors whose contracts are for a period of performance of 120 days, where the work will be performed in the United States of America, and when the value is over $150,000 should use E-Verify. Subcontractors whose prime contract contains the FAR E-Verify clause are also required to E-Verify if the value of the contract is over $3,000 and at least some of the work will be performed in the United States of America. The prime contractor has the responsibility of insuring the subcontractors are using FAR E-Verify clauses in their subcontracts. Contracts for indefinite deliveries or indefinite quantities are also affected if a current contract exists, the period of performance extends to March 8, 2009, and a substantial amount of work or number of orders is expected during the remaining period of performance. Contracts for commercially available off-the-shelf items are not considered contracts requiring to use E-Verify.

When to verify:

Once a contractor receives a contract with the FAR E-Verify clause, they have 30 calendar days to enroll the company or update the company’s E-Verify profile. When contractors hire new employees, the contractor has 90 calendar days to enroll or update the organization’s designation. To do this, go to www.dhs.gov/E-Verify. Once a contractor begins to enter the Form I-9 information for new hires, they must do so for all new hires no later than the third business day after the employees start date. If in the process of enrolling or updating the company’s E-Verify profile the contractor has chosen the verify “entire workforce” option, the contractor will be allotted 180 calendar days to enter the Form I-9 information for all the contractor’s employees.

Who to verify:

The contractors must E-verify any existing employees hired after November 6, 1986 who are working in the United States of America, and performing direct substantial work on a contract with an FAR E-Verify clause. This includes short term and temporary employees. The contractor may choose not to verify new and existing employees with an active confidential, secret, or top secret security clearance or employees who perform administrative or overhead work.

In regards to existing employees, it is important to update their Form I-9 when (a) the employee presented an expired document on a previous Form I-9; (b) the employee presented an unexpired Form I-1551, United States passport, or Form I-766 on a previous Form I-9 and it has since expired; (c) the employee is a noncitizen national and was unable to separately attest to the status on a previous Form I-9; (d) the employee presented a document that was acceptable at the time of the completion of Form I-9 but now is no longer acceptable; (e) the employees immigration status has changed, (f) the employees name has changed; (g) the previous Form I-9 does not conform to the current I-9 requirements; (h) the employee did not provide his or her social security number; (i) the employees social security number or Alien number has changed.

Verification results:

Once a Form I-9 has been completed, the contractor will receive one of three following responses: “Employment Authorized”, “SSA Tentative Nonconfirmation”, “DHS Verification in Process”. The first response indicates the employee is authorized to work. “SSA Tentative Nonconfirmation” indicates there exists an information mismatch and withint 24 hours DHS will respond with either “Employment Authorized” or “DHS Tentative Nonconfirmation”. If the contractor receives the “Tentative Nonconfirmation” response, the contractor should print the notice, review it with the employee, and refer the employee to the appropriate agency. The employee has eight federal government workdays to begin the resolution process. A contractor may not terminate the employee because of a “Tentative Nonconfirmation” response.

**It is important to that all employees consistently when updating previously completed Form I-9s. Requesting a specific document on the basis of someone’s citizenship status or national origin may violate the anti-discrimination provision of the Immigration and Nationality Act or Title VII of the Civil Rights Act of 1964 **