E-Verify Upheld for Federal Government Contractors
September 2009

After several delays, the Department of Homeland Security's E-Verify program has been upheld by the U.S. District for the District of Maryland.

The decision puts into effect a final rule amending the Federal Acquisition Regulation ("FAR") to implement an Executive Order issued by the Bush Administration.  Starting September 8, 2009, the final rule requires federal contractors to use the E-Verify system to confirm new hires and certain existing employees are legally authorized to work in the U.S.  The system is aimed at preventing federal contractors and subcontractors from hiring illegal immigrants. 

E-Verify applies to “Covered Contracts” with the federal government that are performed for a period longer than 120 days and valued at more than $100,000.  The rule also applies to lower-tier contracts exceeding $3,000 that are for services or construction.  The rule will also apply to contracts that are modified and contracting officers are to modify contracts that have a of performance extending past March 8, 2010 and it is determined there is a substantial amount of work still to be performed under the contract.    Commercially Available Off-the-Shelf ("COTS") items are exempt.

 
E-Verify applies to employees working in the U.S. and its territories.  The rule applies to: (1) all employees hired after September 8, 2009 and (2) existing employees hired after November 6, 1986, who work on a Covered Contract.  So existing employees hired before November 6, 1986 or existing employees who do not work on a Covered Contract are exempt.  Employees who hold an active security clearance level of Confidential, Secret, or Top Secret are also exempt from E-Verify program.