The Amendment to Executive Order 12989 has government contractors and subcontractors scrambling to evaluate their legal obligations. Details remain sketchy, but the following information may help prepare a compliance strategy:
What is the Effective Date for Using E-Verify?
Employers have no immediate requirement to start using E-Verify. According to a SHRM news report, the deadline for federal contractors to sign up for E-Verify “still needs to be determined” and will be made public through the standard government regulation process, U.S. Citizen and Immigration Services (USCIS) Acting Director Jonathan Scharfen said, following his testimony June 10, 2008, on E-Verify before the House Immigration, Citizenship, Refugees, Border Security and International Law Committee. Once a deadline has been determined, E-Verify will be able to handle the roughly 200,000 contractors who will have to sign up or risk losing their federal contracts, he said.
Which Employers will be Covered?
The Amendment to E.O. 12989 requires E-Verify use for (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.The original E.O. 12989 set forth the parameters of the order by referencing the debarment provisions of the Federal Acquisition Regulations. Based on the combination of references it appears that the new E-Verify system will be applicable to the employees of all first tier contractors (and their affiliates) and the employees of sub-contractors working on the government contract. It is unclear whether E-Verify applies to existing contracts and/or existing employees.
Are there Alternatives to E-Verify?
An alternate program called New Employee Verification Act (NEVA) (H.R. 5515), has been introduced by Rep. Sam Johnson, R-Texas. NEVA would transform the current paper-based employment verification process by requiring employers to participate in one of two electronic employment verification systems. Employers would enroll through their state’s existing “new hire” reporting program which was originally designed to enhance child support enforcement. The new hire-reporting program is an electronic portal already used by 90 percent of U.S. employers. Commentators have noted “serious flaws” in this program too.
Have the Accuracy Issues with E-Verify been Resolved?
The DHS report “Debunking the E-Verify Error Rate” touting the accuracy of the E-verify System is based on 1000 queries conducted by an independent reviewer noted automatic confirmation of 942 (94.2%) of the sample queries. Five (.5%) of applicants were able to resolve the mismatch by correcting information with the Social Security Administration. The balance of 52 (5.2%) applicants could not be hired because of unconfirmed information. There is no analysis as to whether the rejected applicants where illegal workers or erroneous rejections.
GAO Report issued on June 10, 2008 entitled “E-Verification: Challenges Exist in the Implementing the Mandatory Electronic Employment Verification System” evaluates the accuracy of E-Verify as follows:
According to USCIS, under the current voluntary program the majority of E-Verify queries entered by employers–about 92 percent–confirm within seconds that the employee is authorized to work. About 7 percent of the queries cannot be immediately confirmed as work authorized by SSA, and about 1 percent cannot be immediately confirmed as work authorized by USCIS because the employee information queried through the program does not match information in SSA or DHS databases. With regard to SSA tentative nonconfirmations, USCIS and SSA officials told us that the majority of erroneous tentative nonconfirmations occur because employees’ citizenship or other information, such as name changes, is not up to date in the SSA database, generally because individuals have not contacted SSA to update their information when changes occurred.
Should a Contractor get a “Head Start” by signing up for E-Verify in Advance of the Effective Date?
A wait and see approach may still be the best play as the uncertainties of the effective date and coverage are resolved by regulations. In any event, employers should carefully considered a compliance strategy based on yet unresolved contingencies:
- Scope of Operations covered by E-Verify
- Whether Verification applies to existing employees or just new hires
- Effect on Hiring and Retention of Workforce
- Centralization of Hiring Process
- Communication with No-Match Employees and/or Applicants
- Assistance to Employees in correcting No-Match
- Appreciating the Scope of the No-Match Safeharbor and IRCA’s Anti-discrimination protections