Effective January 15, 2009, certain federal contractors and subcontractors will be required to use E-Verify to verify the employment eligibility of their employees. The final rule published in the November 14, 2008 Federal Register amends the Federal Acquisition Regulation (FAR) and implements President Bush's Executive Order 12989 signed on June 6, 2008.

Under the final rule, federal contracts awarded and solicitations issued after January 15, 2009 will include a clause requiring the contractor and any covered subcontractors to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date. Covered contractors will then have 90 days from the date of enrollment in the program to:

• Initiate verification queries for employees working on the contract and
• Begin using the E-Verify system to verify employment eligibility for newly hired employees.

The final rule does not require covered federal contractors to verify their entire workforce, though they may choose to do so. At the end of the 90-day period, covered contractors will be required to initiate verification of all new hires within three business days after their start date. Contractor's already enrolled in the E-Verify program for more than 90 days will also be required to initiate verification of newly hired employees within three business days of the employee's start date. However, such contractors will still have 90 days from the contract award date to begin using E-Verify for those employees already on staff who are assigned to the contract.

The threshold under the final rule has been raised and applies to federal contracts over $100,000. However, the threshold for subcontractors for services or construction remain the same with a value above $3,000 and does not apply to contracts with performance terms of less than 120 days.

Listed below are additional highlights of the final rule from the Federal Register (edocket.access.gpo.gov/2008/pdf/E8-26904.pdf).

• Contractors or prospective federal contractors are not required by the final rule to enroll in E-Verify now, only if and when they are awarded a federal contract or subcontract that contains the FAR E-Verify clause.
• If your company is already enrolled in the E-Verify program and awarded a federal contract after January 15, 2009, you do not need to re-enroll but you must update your company's profile in E-Verify once a contract has been awarded.
• Once your company has been designated as a federal contractor in the E-Verify system, all designated E-Verify users must take the tutorial that explains the new federal contractor policies and procedures. The tutorial is mandatory to be able to authorize employment through E-Verify.
• Only those companies that win a contract or subcontract that includes the E-Verify clause can run existing employees through E-Verify. Companies enrolled in the E-Verify program, but who do not qualify as federal contractors or subcontractors, can only use the E-Verify program to verify employment eligibility for newly hired employees, and only after the I-9 form has been completed.

If you have any questions, or need further information on this or related topics, please feel free to contact us.