Client Alerts
November 17, 2008

E-Verify System Mandatory for Government Contractors

Stites & Harbison, PLLC, November 17, 2008

by Stites & Harbison, PLLC

On November 14, 2008, a Final Rule requiring certain federal government contractors and subcontractors to use the E-Verify system was posted in the Federal Register. The effect of the final rule amending the Federal Acquisition Regulation will be to require an E-Verify provision in solicitations and prime contracts above an acquisition threshold of $100,000 and in subcontracts in excess of $3,000 for services or construction. Local governments are only required to use E-Verify in relation to employees assigned to a federal contract. The change becomes effective January 15, 2009.

What is E-Verify?

The E-Verify system is an internet-based system administered by the Department of Homeland Security, U. S. Citizenship and Immigration Services in partnership with the Social Security Administration and serves as a means of verifying that employees are eligible to work in the United States. All employers are currently required to complete an Employment Eligibility Verification Form (Form I-9) for each newly hired employee to verify each employe's identity and employment eligibility. The new Final Rule will make the use of the E-Verify system mandatory for government contractors to use in verifying the employment eligibility of all persons assigned to work on the government contract.

How does the E-Verify System Work?

Under the new Final Rule, affected prime contractors and subcontractors will enter the employee's identity and employment eligibility information into the E-Verify system, and the system will check the information against the information in the databases of the Social Security Administration, USCIS, among others. If the E-Verify databases cannot verify the information entered for the employee, then the employer will receive a "Tentative Nonconfirmation" Notice. The employer must notify the employee in writing of the Tentative Nonconfirmation. If the employee chooses to contest the Tentative Nonconfirmation notice, then the employer is required to provide the employee information about resolving the issue and contact information for the Social Security Administration and USCIS. The employee has eight work days to contact the Social Security Administration or USCIS to resolve the issue. The employer may not terminate the employee or take any adverse action against the worker during the pendency of the employee's contest. If the employee fails to contest the E-Verify Tentative Nonconfirmation or if the Social Security Administration or USCIS is unable to resolve the discrepancy, then the employer will receive a notice of Final Nonconfirmation and the employer may terminate the employee.

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