E-Verify Required for Federal Contractors
C. Matthew Schulz
650.856.5528
matthew.schulz@bakernet.com
President Bush signed an Executive Order on June 6, 2008, forbidding contracting federal agencies from entering into contracts with employers who do not use the Department of Homeland Security's electronic employment eligibility verification system to verify the employment eligibility of all persons hired to work in the US or assigned by the contractor to work in the US.
US employers are generally required to verify the employment eligibility of all persons hired to work in the US since the Immigration Reform and Control Act of 1986. Verification is performed by viewing documents presented by the new hire from a list deemed acceptable by the government. Records are generally kept by employers on Form I-9. There is no automatic government review of these records, but the government can audit these records.
More recently, the government established a program to allow employers to submit the employment verification documentation electronically for government verification. DHS' electronic employment eligibility verification system is currently called E-Verify. Participation is voluntary. A quick link is provided in the left column to a Legal Alert from January 2008 discussing the merits of employer participation in this voluntary program.
Most employers do not participate. But the number of incentives to encourage participation is increasing. Earlier this year, the US Citizenship and Immigration Services made an additional period of employment in the US available to qualified foreign students after graduation, but only with employers enrolled in E-Verify. A quick link is provided in the left column to a Legal Alert from April 2008 discussing that rule.
Further, some states require E-Verify participation by any employer doing business in the state and business license revocation is a penalty available for offenders. A larger number of states now have laws that either require participation in E-Verify by employers contracting with state agencies.
Now the President's Executive Order applies a similar rule to US employers contracting with federal agencies. That will make the decision to participate in E-Verify very clear for many in a program that looks less and less "voluntary" as time goes on.