labor lawAdivision of labor law center

 After more than 15 months  of debate, the E-Verify mandate for federal contractors went into effect on September 8, 2009. The regulation also applies to most sub-contractors working on federal projects.

The new regulations apply to any business that signs or renews a federal contract worth $100,000 or more, on or after September 8, 2009. Federal contractors are also required to ensure that any sub-contractor they hire complies with the E-Verify regulations, which adds another layer of administration for many employers.

Employers may think they are covered because they already use E-Verify for all new hires, but they will be mistaken. The new regulations require employers to enroll anew in E-Verify, designating their business as a federal contractor.

A unique feature of the system is that employers must verify the work authorization of existing employees working on federal projects, as well as new hire. This means that even an employee who has been with the company for 50 years must prove that he or she is legally authorized to work in the U.S.

In a business where a single employee may handle varied tasks, it can be difficult to determine who is and is not working on a particular federal contract. In that case, the employer can verify the work authorization status of all existing employees.

However, if an employer chose to verify the work authorization status of only Hispanic employees, or only those who were non-citizens, that would be illegal discrimination based on race, color or national ancestry. The employer must re-verify all employees, or only those working on federal projects.

As part of the DHS E-Verify system, an employer can require that an employee or new hire who is a citizen use a Social Security card as one of the identity documents required on the I-9. Employers who do not use E-Verify still cannot dictate which identity documents an employee chooses to use, from the list provided on the I-9 form.