Keeping tabs on workers: the White House has ordered federal contractors to use E-Verify to check Social Security numbers

Modern Casting, August, 2008

In a new effort to keep illegal immigrants out of the workforce, the Bush Administration has ordered all companies doing business with the federal government to verify their employees' legal working status. The executive order will require thousands of firms to use a government system called E-Verify to check workers' Social Security numbers. Previously the system was voluntary for private firms but mandatory for government agencies. Companies that fail to comply risk losing their government contracts.

Under the order, federal contractors must determine the eligibility of employees who are hired during the contract term by the contractor to perform employment duties within the U.S. or assigned by the contractor to perform work within the U.S. on the federal contract.

E-Verify is an internet-based system that allows employers to verify the employment eligibility of new hires. It is operated by U.S. Citizenship and Immigration Services (USCIS), a part of the U.S. Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA). E-Verify electronically compares employee information taken from the I-9 form (the paper-based employment eligibility verification form used for all new hires) against more than 425 million records in SSA's database and more than 60 million records in DHS's immigration databases. While some states have mandated use of this system for certain employers under state law, voluntary adoption has been slow due to concerns for the accuracy of the government checks and the additional administrative burden placed on employers.

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This step is one of several the administration planned after Congress failed last year to pass an overhaul of immigration laws. However, the new requirement will take effect only after the relevant federal agencies revise the regulations that govern federal contracts. Further guidance is needed by the business community on a host of outstanding questions that the executive order raises, including who is a "contractor" for the purposes of the executive order, does it include a subcontractor, material supplier or vendor of a commercial item, and what--if any--are the procedures and deadlines for employers and/or employees to correct the mistakes that the E-Verify system may make?

Change to I-9 Forms

In mid-June the USCIS released a new I-9 form which is to be used on all approval forms immediately. While the content of the form has not changed from last year's version, the date of the form and Office of Management and Budget expiration date have been adjusted to June 30, 2009. A copy of the new I-9 form can be found at www. uscis.gov/files/form/I-9.pdf.

In addition, I-9 inspections are expected to increase due to the U.S. Immigration and Customs Enforcement's national campaign to crack down on the employment of unauthorized workers. These inspections are announced by service of a subpoena calling for production of I-9 forms for all current employees and for all employees terminated over the past year.

If you have any questions, contact Alicia Oman, AFS Washington Office, at 202/842-4864 or ao@wafed.com.