Starting January 15, 2009, certain federal contractors and subcontractors must use the "E-Verify system."
The E-Verify system allows employers to electronically verify the employment eligibility of newly-hired employees. To use the E-Verify system, employers must enroll in the E-Verify program with USCIS and sign a memorandum of understanding acknowledging that they will not use E-Verify to unlawfully discriminate against employees. The system is administered by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS).
To Whom The New Requirements Apply
E-Verify must be used in connection with all prime contracts above $100,000 and all construction subcontracts over $3,000. Contracts that will take less than 120 days to complete are exempt from the E-Verify requirements, as are contracts for commercially available off-the-shelf items. The newly enacted rule requires that a clause be added to qualifying federal contracts stating that the contractor will use E-Verify to confirm that all of the contractor's employees (existing and new hires) directly performing work under qualifying federal contracts are authorized to work in the United States.
How E-Verify Works
- The process still starts with an Employment Eligibility Verification Form (Form I-9). Each new hire will complete a Form I-9 to verify identity and employment eligibility.
- Federal contractors enter the information provided on the Form I-9 into the E-Verify system.
- The Social Security Administration (SSA) will verify that the name, social security number, and date of birth of the employee entered into E-Verify are correct.
- If the employee attests that s/he is a U.S. citizen, SSA will confirm U.S. citizenship status.
- If the employee attests that s/he is not a U.S. citizen, USCIS will verify employment-authorization status.
- If the identification and work-authorization information on the Form I-9 matches the information in the SSA and USCIS databases, employment eligibility is confirmed.
- Once employment eligibility is confirmed, the employer must record the verification identification number and the result obtained from the E-Verify inquiry on the Form I-9 or print a copy of the transaction record and retain it with the Form I-9.
- If the SSA or USCIS is unable to verify information presented by the employee on the Form I-9, the employer will receive a tentative non-confirmation notice from SSA or the Department of Homeland Security (DHS). It is important to remember that an employer can receive a tentative non-confirmation notice for a number of reasons, including mistyped information, name changes, or changes in immigration status not updated in SSA or USCIS records.
- If the employer receives a tentative non-confirmation notice, the employer must provide the worker with a written notice, provided by the E-Verify system called a "Notice to Employee of Tentative Non-Confirmation."
- The employee must note on the notice whether s/he contests the finding that s/he appears unauthorized to work in the United States and both the employee and the employer must sign the notice.
- If the employee contests the tentative non-confirmation notice, the employer must provide the employee with a second notice generated by the E-Verify system known as a "Referral Letter." The Referral Letter contains information about how to resolve the issues that led to the tentative non-confirmation.
- The employee has eight federal government workdays to try to resolve the discrepancy. An employer is prohibited from terminating (or taking any adverse action against) an employee who contests a finding of tentative non-confirmation while final resolution is pending.
- If the employee does not contest the tentative non-confirmation notice, or if SSA or USCIS is unable to resolve the discrepancy, the employer will receive a final non-confirmation letter and the employee's employment may be terminated.
- Employers must notify DHS if they continue to employ an employee who received a final non-confirmation letter. An employer who fails to notify DHS is subject to a civil penalty of between $500 and $1,000 for each violation.
- If an employer continues to employ an employee after receiving a final non-confirmation letter and that employee is later found to be an unauthorized alien, the employer faces a rebuttable presumption that it knowingly violated the Immigration and Nationality Act by employing an unauthorized worker.