1. What is the required time frame for conducting an employment eligibility check on a newly hired employee?
  2. The earliest an employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the I-9 form. The employer must initiate the query no later than the end of three business days after the new hires actual start date.
  3. An employer may initiate the query before a new hire’s actual start date; however, it may not pre-screen applicants and may not delay training or an actual start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization. An employee should not face any adverse employment consequences based on an employer’s use of E-verify unless a query results ina final non-confirmation. In addition, an employer cannot use an employment authorization response to speed up an employee’s start date.
  4. As a contractor, do any subcontractors hired by the contractor have to E-verify employees of the subcontractor?
  5. USCIS is reminding federal contractors and subcontractors that effective September 8, 2009 they may be required to use the E-verify system to verify their employees’ eligibility to work in the U.S. if their contract includes the Federal Acquisition Regulation E-verify clause.
  6. E-verify must be used to confirm that all new hires, whether employed ona federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the U.S.
  7. The contractor is responsible for notifying the subcontractor that the E-verify clause is included in the contract. Upon notification, the subcontractor is responsible for verifying all employees that will be working on the government contract.
  8. Do we have to E-verify all employees working on a contract or just new ones?
  9. The rule is clear in its requirements to verify existing employees. All who are assigned to a contract must be verified.
  10. The final rule amends the proposed rule to permit federal contractors participating in E-verify program for the first time a longer period- 90 calendar days from enrollment instead of 3 days as initially proposed to begin using the system for new and existing employees. The final rule also provides a longer period after this initial enrollment period – 30 calendar days instead of 3 business days – for contractors to initiate verification of existing employees who have not previously gone through the E-verify system when they are newly assigned to a covered Federal contract. Contractors already enrolled and using the program as Federal contractors will have the same extended time frame to initiate verification of employees assigned to the contract, but the time limits will be measured from contract award date instead of from the contractors E-verify enrollment date.
  11. 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.
  12. New contract vs. renewal contract: Do employees have to re-verify if the contract is renewed?
  13. Re-verification for each contract is necessary because:
  14. A contractor may have accepted documents to demonstrate identity or work authorization that have expired.
  15. Until 2007 it was permissible for naturalized U.S. citizens to present certificates of naturalization to prove work eligibility and many employees chose to use these forms in the I-9 process. Those certificates are not usable as part of the E-verify process.
  16. The I-9 process does not require an employee to provide an SSN, but E-verify does.
  17. The E-verify process requires a picture ID document.
  18. In certain cases a subsequent employer is deemed to have complied with Form I-9 requirements by virtue of verification by another employer within the agreement. If a previous employer within such an arrangement has completed the form I-9 and E-verify, a subsequent employer does not have to re-verify, as long as the employment is within the scope of the statutory provision.
  19. The proposed rule clearly stated that a contractor is not required to perform additional employment verification using E-verify for any employee whose employment eligibility was previously verified through E-verify by that contractor. It is not necessary to run the employee through the E-verify program again each time the employee is assigned to work on a new contract. When, however, a new employee is assigned to a contract and that employee has not previously been verified through the E-verify system, then that employee must be processed through E-verify at the time of assignment to work on the contract. The end result of this procedure is that for any single company no employee, whether existing or newly hired, needs to be verified through the E-verify system more than once.
  20. Subcontractor Flowdown
  21. The flowdown threshold is $3,000
  22. The flowdown is limited by the proposed rule to only subcontracts for construction and services.
  23. When flowing down the clause to the subcontractor, it would be effective only for the duration of the subcontract.
  24. If the subcontractor does not have any subcontract running longer than 30 days, the subcontract term would end before the subcontractor would be required to register with E-verify. However, if the subcontract period runs beyond 30 days the subcontractor would be required to enroll in E-verify, and if the subcontractor continues to receive subcontracts it will be obligated to start using E-verify for its new hires.
  25. The councils believe that prime contractors are responsible for all aspects of contract performance including subcontract requirements. The contractor should perform general oversight of subcontractor compliance in accordance with the contractor’s normal procedures for oversight of other contractual requirements that flow down to subcontractors.
  26. Prime contractors are not expected to monitor the verification of individual subcontractor employees. However, the prime contractor is responsible for ensuring by whatever means the contractor considers appropriate, that all covered subcontracts at every tier incorporate the E-verify clause and that all subcontractors use the E-verify system.

Notes:

  • Executive departments and agencies that into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Department of Homeland Security to verify the employment of:
  • All persons hired during the contract term by the contractor to perform employment duties within the U.S. and
  • All persons assigned by the contractor to perform work within the U.S. on the Federal contract.
  • Contract term – the final rule clarifies that the E-verify clause need not be inserted into prime contracts with performance terms of less than 120 days.
  • Institutions of Higher Education – The final rule modifies the contract clause so that institutions of higher education need only verify employees assigned to a covered Federal contract.
  • An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract
  • Working on a proposal, as opposed to working on an awarded contract, does not constitute work under the contract in question and would not trigger E-verify requirements.
  • There is nothing in the definition of “employee assigned to the contract” that would imply that it makes a difference where that employee is working, as long as it is in the U.S.
  • The term “contract” does not include grants or cooperative agreements. A grant or cooperative agreement that is not governed by the FAR is not required to include the clause in this rule.
  • The period of performance would start at the award date of the contract and extend through the date delivery is compute, unless otherwise specified in the contract. The period of performance does not extend to the date of the contract close out.
  • The final rule reflects the requirements stated in Executive Order 12989, as amended, that the FAR incorporate a rule that will require verification of all existing employees assigned to a contract. Verification of existing employees who work under contracts is a critical element of this rule, and the elimination of this rule would be contrary to the executive order.
  • The employer is not authorized to verify existing employees unless the contract was actually awarded to that contractor.
  • Employees who hold active security clearance are exempt from E-verify.
  • The contractor may choose to verify all existing employees hired after November 6, 1986 rather than just those employees assigned to the contract. The contractor shall initiate verification for each existing employee working in the U.S. who was hired after November 6, 1986 within 180 calendar days of enrollment in E-verify OR notification to E-verify operations of the contractors decision to exercise this option using the contact information given in the Memoranda of Understanding (MOU).
  • Subcontracts
  • The contractor shall include the requirements of this clause in each subcontract that is for commercial or noncommercial services (except for commercial services that are part of the purchase of a COTS item, or an item that would be a COTS item, but for minor modifications) performed by the COTS provider, and are normally provided for that COTS item; or construction; has a value of more than $3,000; and includes work performed in the U.S.