The Federal Acquisition Regulation (FAR) E-Verify requirement for federal contractors was postponed until September 8, 2009, and now, after several postponements, it will actually go into effect on that date.

Just to clarify the ruling, the mandatory FAR E-Verify regulation requires a contractor, and any covered sub-contractors on a federal contract, to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date. This final rule applies to issued solicitations and contracts awarded after September 8, 2009, and which include the FAR E-Verify clause (73 FR 67704). Federal contractors may NOT use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify clause.

Here are the details of the FAR regulation, according to Nicole Lawrence Ezer, of

Greenberg Traurig, LLP. "By September 8, 2009, federal contractors not yet enrolled, or who have been enrolled for less than 90 days, in the E-Verify program AND who have accepted federal contracts that extend over 120 days and are valued at $100,000 or more, must:

• Enroll in the E-Verify program within 30 days from the date of contract award;
• Commence verifying all new hires within 90 days of enrolling in E-Verify; and,
• Initiate verification of all existing workers assigned to a new federal contract within 30 days, after the initial 90 day enrollment time frame.

Note that federal contractors currently enrolled in the E-Verify program for less than 90 days must initiate verification of existing workers assigned to a federal contract within 90 calendar days after date of enrollment or within 30 calendar days of the employee’s assignment to the contract, whichever date is later. Contractors who have been enrolled in the E-Verify program for 90 days or longer must:

• Continue to verify all new hires within three days of hiring;
• Verify all existing workers assigned to a new federal contract within 90 days from the contract award."

Subcontractors

Ms. Ezer continues, "The FAR E-Verify rule only covers subcontracts if a prime contract includes the clause. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. Existing indefinite-delivery/indefinite-quantity contracts should be modified by Contracting Officers on a bilateral basis in accordance with FAR 1.108(d)(3) to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and if the amount of work or number of orders expected under the remaining performance period is substantial.

Finally, if a federal contractor or subcontractor wishes to re-verify its entire workforce they will be given 180 days to do so. This option will include both new hires and existing employees, including those not assigned to a federal contract. If a company elects to do this, they must notify the Department of Homeland Security. A federal contractor that chooses to exercise this option must initiate an E-Verify query for each employee in the contractor’s entire work force within 180 days of updating its company profile."