As previously advised, on June 9, 2008 the President amended an executive order to require the use of E-Verify by companies seeking to enter into federal government contracts. Please see this Executive Order:
http://www.whitehouse.gov/news/releases/2008/06/20080609-2.html We are aware that many of our client companies may enter into contracts with the US government, and therefore may immediately need to have their corporate counsel advise as to whether they must enroll in E-Verify.

As a reminder, E-Verify is a free web-based system into which select employee information is input after completion of the Form I-9 record. E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to help employers verify identity and employment eligibility of newly-hired employees. The government estimates that more than 95% of responses are electronically generated within moments of the submission. Although all employers may use the system, it has become mandatory in some states (not yet in MA) and will be mandatory for those employers that accept some federal contracts, as detailed below.

Federal Contractor Obligations

Specifically, companies with federal contracts awarded after January 15, 2009 (with some EXCEPTIONS below) must use E-Verify for:

Additionally, Subcontractors with federal subcontracts for over $3,000 for services or construction must use E-Verify. Therefore, any subcontractors you may work with on such contracts should be advised of this obligation.

Please also note that current federal contracts may be modified in order to obligate employers to use E-Verify. Specifically, the federal government may modify existing indefinite-delivery/indefinite-quantity federal contracts after January 15, 2009 to include the E-Verify requirement clause for future orders. Thus, if the remaining period extends six months after January 15, 2009, and if work expected under the remaining period is substantial, you should anticipate that these contracts may be modified to include the E-Verify requirement.

 EXEMPTIONS from the E-Verify requirement:

•  Contracts for less than $100,000
   

• Subcontracts for $3,000 or less
   

• Contracts with a period of performance of less than 120 days
   

• Contracts that include only commercially available off-the-shelf (COTS) items or minor modifications to a COTS item, and related services. (COTS items: sold in substantial quantities in commercial marketplace; offered to government in same or slightly-modified form in which they are available commercially; includes most food and agricultural products.)
   

• Contracts where all work is performs outside the U.S.

WHEN to enroll in E-Verify as a Federal Contractor:

• Federal contractors must ENROLL within 30 days of the contract award date
   

• Employers may enroll in E-Verify before being awarded a federal contract on or after January 15, 2009, but in that case should not enroll as federal contractors. Upon being awarded federal contract on or after January 15, 2009, UPDATE the company profile through the “Maintain Company” page.
   

• Federal contractors have 90 days from the date of initial enrollment in system to INITIATE QUERIES for all employees on staff who will work on the contract and begin using system to verify employment authorization of new employees. After 90-day period, each new employee’s information must be verified within 3 business days of start date.

Limitations/ Restrictions:

• Most federal contractors must use E-Verify for all employees hired for employment within the U.S. during the term of any federal contract, and all employees assigned to perform work within the U.S. on the federal contract. This must be done regardless of how intermittent or short-term the employees work on the contract will be. However, special rules govern contractors that are state or local governments, governments of recognized Native American tribes, and sureties performing under a takeover agreement entered into with a federal agency pursuant to a performance bond.
   

• Federal contractors MAY CHOOSE to verify entire workforce (new hires and existing employees, including those not assigned to federal contracts). The employer must initiate query for each employee within 180 days of choosing this option in the company profile.
   

• Employees who normally perform support work (indirect or overhead functions) and do not perform substantial duties applicable to the contract are not considered to be assigned to the contract or performing work under a contract.
   

• E-Verify need not be used for an employee who holds an active federal agency HSPD-12 compliant credential or a U.S. Government security clearance for access to confidential, secret, or top-secret information (see National Industrial Security Program Operating Manual).
   

HOW to Enroll:

• Register at https://www.vis-dhs.com/EmployerRegistration
   

• Employers must sign Memorandum of Understanding (MOU) as part of registration process. MOU outlines terms of agreement between employer, SSA, and DHS.
   

• Employers registering as Federal Contractors required to take federal contractor tutorial
   

• Estimated 3 to 4 hours to register online, review MOU, and take tutorial
   

• After enrollment completed, USCIS must activate account. USCIS will send e-mail containing login instructions, user ID, and password.
   

Employers with MULTIPLE HIRING SITES:

• Companies with multiple hiring sites not necessarily required to enroll all sites: may choose which sites to enroll
   

• If selecting “multiple site registration,” employer must provide number of participating sites. • One site may verify new hires at all sites.
   

• Each site that has signed an MOU must verify status of all new hires for that site.

FOR MORE INFORMATION FROM THE GOVERNMENT:

USCIS website: www.uscis.gov -- click on E-Verify icon on home page or E-Verify Customer Support line at 1-888-464-4218.

FOR MORE INFORMATION FROM OUR OFFICE:

If your company has additional questions or concerns about the applicability of the federal contractor obligations, please do not hesitate to contact us for further guidance. Our office would be happy to prepare additional guidance on your company’s unique situation. Please contact any of the attorneys in our office to set up a time to discuss.