• Federal contractors who received qualifying contracts on or after September 8, 2009, must participate in the E-Verify program to ensure that the employees who work under the contract are legally eligible for employment.

For most employers, use of the E-Verify® system is voluntary, but an Executive Order requires federal contractors who receive qualifying contracts on or after September 8, 2009, to participate in the E-Verify program. This requirement is meant to ensure that the federal government only does business with companies that have a legal workforce.

Qualifying contracts are those with a contract length longer than 120 days and a value above $100,000. Such contracts will include a clause committing the contractor to use E-Verify. Such a clause will also be required in subcontracts over $3,000. Though the requirement to use E-Verify will mainly affect new contracts entered into on or after September 8, 2009, previously established contracts that are modified may also contain this clause.

Federal contractors who are required to use E-Verify must use the system to verify the employment eligibility of:

• All new hires, and
• Employees assigned to work on the federal contract within the United States.

The requirement for federal contractors to use E-Verify to check the work eligibility of existing employees is a departure from the typically allowed use of the E-Verify system, which otherwise only allows for the verification of newly hired employees. “Employees assigned to work on the federal contract” does not include employees who normally perform support work, such as indirect or overhead functions, if they do not perform any substantial duties under the contract. However, it does include all employees who work directly on the contract, even if only for a limited amount of time or on an intermittent basis.

Under Executive Order 13465, federal contractors who are awarded a qualifying contract on or after September 8, 2009, also have the option of using E-Verify to verify their entire workforce (both new hires and current employees), regardless of whether the employees will be working on the qualifying federal contract. Note that this option is only available to contractors who are awarded a qualifying contract on or after September 8, 2009. Federal contractors who were using E-Verify before that date may not use E-Verify to verify their entire workforce unless they receive a federal contract with the E-Verify clause in it on or after that date.

Timeframes

An organization must enroll in E-Verify within 30 days of being awarded a qualifying contract, and it has 90 days from the date of enrollment to initiate verification of current employees assigned to work on the applicable federal contract. After that same 90-day period, contractors will also be required to verify newly hired employees within three business days after their start dates and must continue to verify new employees for the life of the federal contract.

Contractors already using E-Verify

Since any employer (regardless of federal contractor status) can use E-Verify voluntarily, some employers may have already been participating. Where this is the case, employers should only run employees through the E-Verify system once. If an employee has already been verified, an employer does not need to re-verify that employee upon receipt of a qualifying federal contract.

During the E-Verify enrollment process, the employer will be asked to identify whether or not it is a federal contractor. Employers who are already using E-Verify and become a federal contractor after June 30, 2009, do not need to re-enroll in E-Verify, but do need to update their company profile to indicate their federal contractor status.

At the end of a federal contract, an employer may choose to continue to use E-Verify but should update its company profile to indicate that it is no longer a federal contractor. Such employers will no longer be able to confirm existing employees through E-Verify. A company that no longer wishes to participate in the E-Verify program at the end of a federal government contract must officially terminate their involvement in the program by selecting the “request termination” link in the E-Verify system.