On June 9, 2008, the White House released an Executive Order requiring all employers who are federal contractors to enroll in and use the E-Verify system. While use of E-Verify will be mandatory for federal contractors, the requirement does not take immediate effect. A notice of proposed rule making (NPRM) was published in the Federal Register on June 12. The NPRM was published by the Department of Defense and other agencies as a proposed amendment to the Federal Acquisition Regulation (FAR).

We have reviewed the NPRM. As proposed, the regulations do not require federal contractors to use E-Verify at this time. Federal contractors will not be subject to the E-Verify requirement until after the final rule takes effect. This will not happen until after comments from the public are submitted and reviewed, and the final rule is published with an effective date. This is not likely to occur for several months. The NPRM anticipates E-Verify being applied to federal contractors in Fiscal Year 2009 at the earliest.

The NPRM indicates E-Verify is not immediately required for federal contractors. However, the NPRM also indicates that the use of E-Verify will be substantially enlarged. The present E-Verify program is expressly limited for the employment verification of new hires. In fact, employers are specifically barred from using E-Verify to "re-verify" the employment authorization or identity documents of existing employees. Under the NPRM, federal contractors will be required to use E-Verify to verify employment authorization for all new hires under a specified federal contract, but they will also be required to re-verify the employment authorization for all existing employees who will be working under the same federal contract.

The NPRM indicates that U.S. Citizenship and Immigration Services (USCIS) is presently revising the E-Verify Memorandum of Understanding and program guidance to reflect this change for federal contractors. As proposed, only federal contractors would be required to re-verify existing employees through E-Verify. Employers who do not contract with the federal government would not be permitted to re-verify employees who had previously been determined by any means to be legally authorized to work in the United States. This bears repeating: E-Verify cannot be used to re-verify any employee's ability to work even if the I-9 requirements dictate that a re-verification is mandated; it is only to be used for new hires.

While federal contractors are not required to immediately enroll in the E-Verify program, employers subject to this requirement should begin planning for E-Verify, and in particular how to identify employees subject to this new requirement. Care will be required, as employers will need to apply E-Verify for all new hires, regardless of whether the hire will work under a specified federal contract. However, only certain existing employees will be subject to the re-verification requirement for E-Verify.

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). E-Verify is designed to allow participating employers to electronically verify the employment eligibility of their newly hired employees after completion of a Form I-9. E-Verify is free and is voluntary for most employers. Information about E-Verify, including how to enroll is available from USCIS at www.uscis.gov/E-Verify.

Jackson & Hertogs is available to assist employers with E-Verify enrollment, as well as provide guidance and counseling on how employers may use E-Verify. Please contact your Jackson & Hertogs attorney if you have questions or need assistance with E-Verify.

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