There has been some confusion as to whether all current and prospective Federal contractors are already required to use E-Verify to confirm that their employees are eligible to work in the U.S. President Bush’s Executive Order (Amending Executive Order 12989) dated June 9th, 2008, instructed federal agencies to require contractor participation in E-Verify. The Proposed Rule provided detailed guidance on how that requirement is to be implemented to cover Federal contractors and subcontractors. Federal departments and agencies within the Executive Branch are already enrolling with E-Verify to check the status of all new hires within the Federal workforce.
The issuance of the Executive Order and the Proposed Rule made some Federal contractors concerned that they would have to start using E-Verify immediately. The Department of Homeland Security (DHS) June 9 announcement stated that the DHS “designated E-Verify, operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration, as the electronic employment eligibility verification system that all Federal contractors must use as required by Executive Order 12989, as amended.” The announcement also said, however, that Agencies responsible for Federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register soliciting public comment on proposed changes to these regulations. Comments were to be accepted for 60 days.
In response to numerous complaints from employers, including the U.S. Chamber of Commerce, as well from civil rights organizations and immigrant groups, USCIS posted a clarification on its website stating that under the Proposed Rule current and future Federal contractors are not yet required to participate in the program.
The Federal Contractors Frequently Asked Questions (FAQs) section on the USCIS website now notes that the Proposed Rule is not yet a final rule but rather a proposal that is still open for public comment. The Federal government, however, continues to encourage the use of E-Verify despite objections being raised about the program’s accuracy, protection of privacy rights, and other civil rights concerns.
Federal Contractors Frequently Asked Questions (FAQs)
1. As a current or prospective Federal contractor, am I required by the Executive Order or the proposed rule to enroll in E-Verify now?
Not at this time. At this time, the E-Verify program remains a voluntary program for employers, including federal contractors. The Executive Order instructs Federal agencies to require contractor participation in E-Verify as a term of future contracts, and the proposed rule provides detailed guidance on how that requirement is to be implemented. However, the proposed rule is not a final rule; it is a proposal that is open for public comment at this time. There may be substantive changes to the rule before it becomes final. Moreover, the final rule will not be effective until 30 days after publication. Under the proposed rule, you would only be required to enroll in E-Verify if and when you enter into a Federal contract or subcontract that requires participation in E-Verify as a term of the contract. Although Federal Contractors are not yet required to participate in E-Verify, you are encouraged to enroll in E-Verify now to verify the employment eligibility of your new hires.
The U.S. Congress is likely to extend the E-Verify program. It has been extended twice before and it must be reauthorized in November. Its use is also likely to increase. As of this June, more than 69,000 employers nationwide relied on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in Fiscal Year 2008. USCIS announced that 99.5 percent of qualified employees are cleared automatically by E-Verify without need for any further action. According to a USCIS official, more than 1000 new U.S. employers sign up for E-Verify each week.
Government madates to promote the use of E-Verify are likely to have a significant impact on employers who may be planning to switch from paper I-9 forms to electronic management of employment eligibility verification. Electronic Form I-9 management system from Tracker I-9™ is now integrated with E-Verify and allows employers to instantly and securely submit E-Verify information to government databases over the Internet. Tracker I-9 is also offering employers a free E-Verify and Form I-9 HR Toolkit, which can be requested by going to the Tracker I-9™ website.
Also see our press release: Tracker I-9™ Compliance Software Will Help Federal Contractors Meet New Requirement to ‘E-Verify’ Employees’ Work Eligibility
Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.