E-Verify For Federal Contractors
Background
On November 14, 2008, the Department of Defense (DoD), the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), published a final rule amending the Federal Acquisition Regulation (FAR) to require certain federal contractors and subcontractors to use the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system.
The rule is effective September 8, 2009.
General Applicability
The general summary below is derived from two USCIS Q&As on this topic. Refer to those documents and to the final rule for greater detail.
The final rule applies only to employers with a qualifying federal contract that is awarded on or after the applicability date of the final rule. Only federal contracts that meet all of the following conditions will subject a prime contractor to the E-Verify requirement:
- The prime contract has a period of performance longer than 120 days
- The prime contract has a value above $100,000 (the simplified acquisition threshold)
- The prime contract contains an E-Verify clause requiring the contractor to use E-Verify as a condition of the contract
- The prime contract was awarded on or after the applicability date of the final rule
The rule also applies to subcontracts for services or construction with a value over $3,000 where the prime contract contains the E-Verify clause.
Contracts awarded prior to the applicability date of the final rule without the E-Verify clause are not bound by the rule, except for indefinite delivery/indefinite quantity (IDIQ) contracts that are modified on or after the applicability date of the final rule to include the E-Verify clause.
Special Category Employers, Including Institutions of Higher Education
Under the final rule, institutions of higher education with qualifying federal contracts can choose to limit the E-Verify verification to only employees (existing or new hires) assigned to the federal contract in question. This exemption also applies to "a State or local government or the government of a Federally recognized Indian tribe; or a surety performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond." The proposed rule published on June 12, 2008, did not contain such an exemption. Federal contractors not eligible for the exemption must use E-Verify to verify all current employees working on a federal contractor as well as all new hires regardless of whether they are working on a federal contract.
