Regulation of Using E-Verify

On June 6 2008, the Bush administration signed an amendment to Executive Order 12989, mandating that all companies hired to perform work for federal agencies must use the E-Verify system to ensure that their employees are legally eligible to work in the United States. Businesses failing to abide by this directive risk losing federal contracts.

On June 9, the Department of Homeland Security (DHS) designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use.

E-Verify, formerly known as the Basic Pilot/Employment Eligibility Verification Program, was originally established in 1997 by the Department of Homeland Security in partnership with the Social Security Administration. It is a free, internet-based system run by the United States government to allow employers who are enrolled in the E-Verify program to confirm the legal status of new employees.

The current form of the proposed regulation requires that all entities which provide the federal government with over $3,000 worth of goods or services in the United States use E-Verify for all new employees, even those who do not actually work on the federal contract. It also requires such entities to identify all employees who currently work on any federal contract and verify their legal status through E-Verify as well. The only entities excluded from this regulation are those who perform work for the federal government outside of the United States, provide less than $3,000 of goods or services, or provide contracts for commercial, off-the-shelf supplies.

The regulation is now open for public comment until August 12, 2008. Once the public comment period expires, the rule will either be implemented in its current form, or modified based upon the public comments received.

Once the regulation is implemented, the included entities will have 30 days to enroll in the E-Verify program, and then another 30 days to verify all current employees working on federal contracts in addition to all new ones. After that, such entities must verify the legal status of all new employees through E-Verify within three days after their hiring. The mandatory use of E-Verify will be a provision included in all federal contracts.

The E-Verify program will be used in conjunction with the existing I-9 forms. So although the proposed regulation will be implemented after the public comment period expires, federal contractors still have to complete the I-9 form for all new hires.