Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

E-Verify_LogoFederal contractors are now required to use E-Verify, an Internet-based system operated by the Department of Homeland Security (DHS) & the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of their newly hired employees.  E-Verify is a free and, until last week, voluntary way to determine the employment eligibility of new hires and the validity of their Social Security Numbers.


On Friday, June 6, 2008, President Bush signed an executive order amending Executive Order 12989, which is entitled “Economy And Efficiency In Government Procurement Through Compliance With Certain Immigration And Naturalization Act Provisions.”  Sounds important, right? This is in fact very big news for government contractors, who must now revamp another part of their hiring process to ensure that they don’t lose their contracts.

The original Executive Order 12989, “Economy & Efficiency in Government Procurement Through Compliance with Certain Immigration & Naturalization Act Provisions”, was signed by President Clinton on February 13, 1996.  It stated that if a government contractor violated the Immigration and Naturalization Act’s prohibition on hiring illegal or undocumented aliens, the contractor could be “debarred.”  Debarment means that the contractor loses its current government contract and is shut out from future contracts for the duration of the debarment period.

The amended E.O. 12989 goes a step further, requiring all government contractors to use the DHS electronic verification system (currently known as “E-Verify”)  to ensure that “all persons hired during the contract term by the contractor to perform employment duties within the United States” are authorized to work in the United States. This requirement apparently extends to all newly hired employees, not just employees hired to work on the government contract. In addition, the Executive Order requires the contractor to use an electronic verification system to verify the employment eligibility of “all persons assigned by the contractor to perform work in the United States.”

The Order instructs the Secretary of Homeland Security to “modify as necessary and appropriate the electronic employment eligibility verification system….” On June 9, 2008, DHS announced that E-Verify is the system designated for use by federal contractors for compliance with E.O. 12989.  According to DHS, “Agencies responsible for federal acquisition regulations (FAR) will send a Notice of Proposed Rulemaking (NPRM) to the Federal Register today soliciting public comment on proposed changes to these regulations. Comments will be accepted for 60 days.”

DHS also assured employers that using E-Verify will not be too painful: “More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.” E-Verify is a free service that, according to DHS, usually verifies an employee’s work authorization in seconds.

As the DHS E-Verify System is currently designed, it may be used only for newly hired employees but legislation introduced by Senator Chuck Grassley on June 5, 2008, would expand the program to cover current employees also.  You can read more about the E-Verify System on the DHS website as well as in prior posts on this blog.

Contractors must still take care to avoid discriminating against applicants and employees who are simply suspected of being undocumented workers. As Procurement Executive Janice Sposato pointed out in April 1997 after the promulgation of the original E.O. 12989, there are various laws that prohibit discrimination based on citizenship status and national origin discrimination. Accordingly, contractors may not “single out or otherwise treat individuals differently because they are foreign born, ‘foreign-looking,’ have ‘foreign sounding names,’ or have accents. All individuals must be treated in the same way during the part of the hiring process in which work authorization documentation must be provided and inspected.

Related E-Verify & Immigration Law Posts:

Getting the Jump on No-Match Letters and Suspicious Document Notices

Safe-Harbor Rule for No-Match Letters: Part 1

Safe-Harbor Rule for No-Match Letters: Part 2

Safe-Harbor Rule for No-Match Letters: Part 3