by Keli P. Wilson, Consultant, DCI Consulting Group, Inc.

The final E-Verify rule was to become effective on January 15, 2009; however, due to recent events, the effective date was extended to February 20, 2009. This means the E-Verify clause will be included in contracts awarded after February 20, 2009. All prime federal contractors with a contract awarded in the amount of $100,000 or more are required to comply with the E-verify clause. Inclusion of the clause is also required in subcontracts over $3,000 for services or construction. However, contracts with performance terms of less than 120 days are excluded from this final rule. Additional exemptions include employees with security clearances and HSPD-12 credentials, contracts available off-the-shelf (COTS) or would be if not for minor modifications, and agricultural products shipped as bulk cargo that would otherwise have been categorized as COTS.

Federal contractors are required to verify authorization to work in the United States for all current employees directly performing work under the Federal contract and for all new hires throughout the term of the Federal contract. The contractor will record the verification identification number and result of the verification in the Form I-9 (or print out the result and keep the document with the I-9 form).

Federal contractors participating in the E-Verify program for the first time will have 30 calendar days to enroll, 90 calendar days from enrollment to begin using the system for existing employees, as well as 3 business days to verify new hires. In addition, after this initial period employers will have 30 calendar days to verify current employees newly assigned to contract work. The timeline differs slightly for contractors already using E-Verify prior to the final regulation. Federal contractors already enrolled will have 90 calendar days from the contract award date to verify employees and 3 business days from the hire date to verify all new hires.

In addition, contractors have the option of verifying all employees, even those employees not assigned to work directly on the Government contract. If the contractor chooses this option, the time period to verify all employees would be 180 days.

In some cases, employers only need to verify employees assigned to a federal contract and only those new hires assigned to work on the contract (not all new hires). These exceptions apply to the following: institutions of higher learning, state or local governments, federally recognized Indian tribes and sureties.

Lastly, it’s highly recommended to review current federal contracts to determine if and when the E-Verify clause is applicable to your contracts (e.g., modifications made to the contract). Following is a quote from the Department of Homeland Security FAQ website:

“Usage of E-Verify also applies to indefinite-delivery/indefinite-quantity contracts modified after the January 15th, 2009 effective date of the rule on a bilateral basis in accordance with FAR 1.108(d)(3) to include the clause for future orders. The FAR rule provides that if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial, then the contract should be modified to include the clause.”

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