With the E-Verify Federal Contractor Rule now in effect, the USCIS has released a supplemental guide for federal contractors which provides a basic outline of the rule, associated deadlines, enrollment options, exemptions, and other information. The supplemental guide and the E-Verify User Manual for Federal Contractors can be downloaded from this USCIS web page.
Most of the information in these new guides comes from previously published FAQs and webinars hosted by DHS. In a few instances, however, the USCIS has answered some lingering questions (while also leading us to a few more). In today’s blog, we’ve selected the most interesting revelations from the federal contractor supplement while identifying some unresolved issues. For more information on any of these topics, check out the supplemental guide (22 pages) available in the link above. It’s also best to discuss these issues with your legal counsel to properly plan your organization’s E-Verify roll-out.
Covered Contracts and Enrollment
How do I know if my organization has (or will have) a qualifying contract? This has been one of the most frequently voiced questions, and the guide makes it very clear that “your government contracting official, not the E-Verify program, determines whether your contract will include the FAR E-Verify clause. You should review your contract for the FAR E-Verify clause, and check with your government contracting official if you have questions.” While this may be comforting to know, it still doesn’t help organizations plan for the future. A helpful rule of thumb for some organizations: not all contracts with the government (even those meeting the threshold) are covered by this rule. The E-Verify requirement will only apply to certain “procurement” contracts (i.e., the government is buying products or services from an organization).
Assuming my company is awarded a covered contract, how do I designate it as such in the E-Verify system? The guide provides: “Once your company is awarded a Federal contract that includes the FAR E-Verify clause, you must designate your company as a Federal contractor in E-Verify.” The interesting part here though is the next sentence which indicates “[y]ou should not do so until you officially receive a qualifying Federal contract.” As explained below, the primary reason for waiting is that your deadlines for verifying existing employees depends upon your organization’s enrollment (or designation) as a federal contractor.
Contractor and Subcontractors
The guide affirmatively states that prime contractors are not responsible for verifying the subcontractors’ individual employees. However, the prime contractor must, by whatever means the contractor considers appropriate, ensure that all covered subcontracts at every tier incorporate the E-Verify clause and that all subcontractors use the E-Verify system. This requirement was alluded to in the commentary portion of the regulations, but unfortunately, it’s still not very clear, especially with respect to a prime contractor’s liability for ensuring the continued use of E-Verify by covered subcontractors. At a bare minimum, it seems that prime contractors should request proof that their covered subcontractors have enrolled in E-Verify. See our prior post on how to document an employer’s participation in E-Verify.
The guide also mentions that subcontractors may designate the prime contractor as its designated agent for ensuring E-Verify compliance. While this would help prime contractors ensure that subs are following the rules, it may be overly burdensome to the prime contractor, both in terms of the time needed to perform the verification queries as well as the liabilities under the designated agent MOU.
Submitting Form I-9 information for Existing Employees
The guide presents two options for entering Form I-9 information into E-Verify for existing employees: (1) the employer can complete new I-9 forms for all employees or (2) employer can carefully examine and review previously completed I-9s with the employees to determine if a new form is needed or if the form can be updated. Clearly, the USCIS seems to think that option 1 is easier because “the process is the same as the process for newly hired employees” whereas option 2 may only be appropriate if you have few employees and/or sufficient resources to determine if a new Form I-9 is needed or existing ones must be updated.
For employers choosing option 2, the guide also explains situations when a new Form I-9 must be completed. These include when the employee
- Presented an expired document on a previous Form I-9 that allowed for such documents;
- Is an alien whose employment authorization as stated in Section 1 of Form I-9 has expired;
- Presented a List B document that did not have a photo when he or she completed the previous Form I-9;
- Presented a List B document on a previous Form I-9 and you are unable to determine if that document had a photo;
- Was at the time of attestation a Noncitizen National of the United States and was unable to attest to his or her correct status in Section 1 of Form I-9 with a revision date before 02/02/09;
- Had a change in his or her immigration status;
- Changed his or her name; or
- Completed his or her previous Form I-9 and it did not comply with Form I-9 requirements at the time of completion.
Throughout the guide, we’re told that the deadlines for verifying existing employees is within 90 days or 180 days depending upon the election. The question still remains: do all existing workers have to be verified by those deadlines? Or does the employer simply need to start verification within that timeframe? In section 3.5 of the guide, the language seems to favor the former when it indicates the employer must “verify all existing employees assigned to a contract within 90 calendar days of enrollment OR within 30 calendar days of employee’s assignment to a contract, whichever is later.”
Finally, it’s important to note the timeline for employers already enrolled in E-Verify. The guide makes it clear that employers already using E-Verify have 30 days after contract award to update their company profile to designate themselves as a federal contractor. Prior guidance was inconsistent as to whether existing E-Verify-enrolled employers were afforded this extra time. The key take-away here: avoid updating your profile until absolutely necessary to give your organization as much time as possible to E-Verify existing employees.