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E-Verify Rule Now in Effect

October 9, 2009
A rule requiring federal contractors and subcontractors to use the Department of Homeland Security U.S. Citizenship and Immigration Services' E-Verify system to verify their employees' authorization to work in the U.S. is now in effect.  The rule applies to federal solicitations and contract awards government-wide beginning September 8. The FAR Council issued the final rule in November 2008.  In response to a legal challenge to the rule and in order to give the new administration time to fully review the matter, the government agreed to suspend the rule on three separate occasions, but, in a July 8 statement, DHS Secretary Janet Napolitano announced that DHS will "push ahead with full implementation" of the rule without further delay. The rule requires the insertion of a new clause in certain federal contracts and subcontracts.  Prime contracts below the simplified acquisition threshold of $100,000 and those with performance terms of less than 120 days are excluded.  The clause requires the contractor to use E-Verify to confirm employment eligibility of all new employees hired during the contract term and all current employees assigned to work on a federal job within the U.S.  It also allows, but does not require, the federal contractor to use E-Verify to confirm eligibility of all employees, regardless of whether they are assigned to work on a federal job.  Currently, use of E-Verify to confirm anyone other than a new hire (including applicants and current employees) is prohibited.  The rule applies only to employers with direct contracts with the federal government and, via a flow-down requirement, to their subcontractors.  It does not apply to employers working only on federally funded projects or on other projects not under contract with a federal agency. Although the litigation continues, contractors are advised to carefully review all new solicitations and contracts for federal projects and comply with any E-Verify requirements at this time.  AGC will continue to monitor all related litigation and legislation and will report on significant developments. Click here for the E-Verify Supplemental Guidance for Federal Contractors issued by USCIS on September 8.  Click here for DHS's list of Frequently Asked Questions (FAQ's) for Federal Contractors and E-Verify.  Click here for more information about critical components of the rule.  Click here for information about free webinars on the E-Verify program. Further guidance on immigration compliance is available in an MP3 download of a live educational session held at AGC's Annual HR Professionals Conference in June 2008.  An immigration law update will also be provided at AGC's next HR Professionals Conference, which will take place October 27-29, in Atlanta, Ga. Click here for conference details and registration.
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