E-Verify (formerly called the Basic Pilot/Employment Eligibility Verification Program) is an online system that is operated by the Department of Homeland Security and the Social Security Administration. This program allows employers to verify a new hire’s eligibility to work in the U.S. by verifying information from his/her I-9 Form against data in a composite national database.
This program is currently voluntary for most employers may NOT be used to verify employment on current employees. For companies not required to utilize it, careful thought should be given before enrolling in the program. While use of the system is free, employers must take the internal steps to implement certain procedures including posters, notices, authorization forms, and adverse action protocols. Additionally, employers who are not willing to make the necessary changes that may be needed based upon information received back from E-Verify should not voluntarily enroll in the program. Likewise, automatically terminating an employee on whom mis-match information is received from E-Verify is illegal and can subject the employer to fines, penalties, and claims of discrimination.
However, the rules have recently changed for federal contractors. Beginning September 8, 2009, federal contractors with federal contracts in excess of $100,000 and with performance terms which exceed 120 days and federal subcontractors with federal subcontracts in excess of $3,000 MUST use the E-Verify system to verify that NEW and CURRENT employees are authorized to work in the U.S.
These employers must enroll in E-Verify within 30 days of the contract award date (and in other instances, such as contracts involving indefinite delivery or quantity of projects modified after September 8, 2009 and contracts which will not be completed until March 8, 2010 or later).
These employers must initiate E-Verify for existing employees who will be working on the contract and all new hires within 90 days of enrolling in E-Verify. After the 90-day phase-in, the employer must initiate E-Verify for all new hires within 3 business days of their start dates.
The employer must continue using E-Verify for the duration of the contract for all new hires whether or not they are assigned to the contract, unless certain exceptions apply. (Exceptions apply to institutions of higher learning, state and local governments, governments of federally recognized Native American tribes, and for sureties performing under a takeover agreement with a federal agency.)
An “employee assigned to a federal contract” is an employee hired after November 6, 1986, who is directly performing work in the U.S. under a contract that includes the clause committing the contractor to use E-Verify. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions and does not perform any substantial duties under the contract.
What employers need to do:
For additional information, please review the U.S.C.I.S. website at http://www.uscis.gov/.
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