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Mandatory E-Verify for Research and Educational Institutions with Federal Contracts Introduction A recent amendment to the Federal Acquisition Regulation (“FAR”) soon will require many federal contracts, including contracts with universities, to contain an “E-Verify Clause” obligating the contractor and its subcontractors to use the government’s E-Verify program to confirm the work authorization of their employees. This article focuses on the E-Verify Clause requirement as it applies to universities. Although opponents of the regulation may sue to block its implementation, whatever the outcome, the Obama administration has signaled its interest in cracking down on employers that hire unauthorized workers. Therefore, universities should be taking steps to prepare for implementation of the FAR amendment and, at a minimum, to ensure that they are complying with existing I-9 employee verification requirements. The E-Verify System E-Verify is an internet-based system operated by the US Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Security (“DHS”) together with the Social Security Administration (“SSA”). It was designed to allow an employer to check the work authorization and social security numbers of its workers against government databases as part of the I-9 verification process. A data match will result in verification. A mismatch will yield a tentative nonconfirmation notice (“TNC”), which the employee can contest or not. The employer may not terminate the worker until E-Verify issues a notice of final nonconfirmation (“FNC”), which will occur if the discrepancy is not resolved. To use E-Verify, a contractor must enter into a Memorandum of Understanding (“MOU”) with USCIS and SSA. More information about E-Verify is at http://www.dhs.gov/E-Verify. Contracts Covered As a general rule, the FAR amendment will require the E-Verify Clause to be included in the following contracts: Prime contracts awarded after January 15, 2009, with a performance period longer than 120 days and a value above $100,000; Flow-down subcontracts for services (except for commercial services related to the purchase of commercially available off-the-shelf items or “COTS”) with a value over $3,000; and, Indefinite-delivery/indefinite-quantity contracts (“IDIQ contracts”) with a remaining performance period that extends more than six months after January 15, 2009, if the amount of work or expected number of future orders is substantial. The E-Verify Clause requirement does not apply to: Contracts for COTS; Contracts only for work that will be performed outside the United States; or, Grants and cooperative agreements, which are not covered by the FAR. by Denise C. Hammond, Managing Partner of Hammond Claxton, P.C., with offices in Rockville, Maryland, and Washington, D.C. Ms. Hammond was recognized by Legal Times and in Washington Post surveys as a leading immigration lawyer in the Washington, D.C., area. She can be reached at email@example.com Employees Covered - The E-Verify Clause As Applied to Universities Unlike universities, the general population of covered contractors must E-Verify all new hires and all existing employees “assigned to the contract.” In view of their sheer size and unique characteristics, institutions of higher education (as defined at 20 U.S.C. §1001(a)) can choose to E-Verify all new hires, but are only required to E-Verify employees who are “assigned to the contract,” whether new or existing. There are valid reasons for limiting the E-Verify burden on the educational and research community. The size of many institutions would make E-Verification of all new hires financially and administratively burdensome and unduly stress the E-Verify system. The use of “sponsored pool accounting systems” facilitates changes in researchers’ and staff members’ funding sources, which complicates the use of E-Verify. Universities with significant foreign national populations already have strong programs to monitor work authorizations, are subject to rigorous immigration oversight and are low-risk employers. Requiring universities to E-Verify all new hires would hamper their ability to attract highly sought foreign nationals and impact the quality of research programs. This is particularly unjustified since most federal funding to the educational and research community takes the form of grants, not contracts. Thus, requiring a university to E-Verify all its new hires just because it has a single contract would increase incentives for academic institutions to insist on grant funding rather than agreeing to enter into contracts. This would increase costs and performance risks to the government. Therefore, institutions of higher education need only E-Verify employees assigned to a federal contract. Although universities will have a particular interest in determining who is assigned to the contract, the FAR amendment provides limited guidance. It states that an employee is deemed assigned to the contract if he or she directly performs work under the contract as opposed to normally performing support work or overhead functions. A mailroom clerk serving the entire firm would not be “assigned to the contract”. Because it can be unwieldy to determine which employees are “assigned to a contract,” contractors, including universities, may opt to use E-Verify for their entire workforce, including all new and existing employees, regardless of their relation to the contract, with prior notice to DHS. Exempted from E-Verify processing are employees with an active federal agency HSPD-12 credential or certain active US Government security clearances. Timeframes for Implementation Covered contractors and subcontractors must enroll in the E-Verify program within 30 calendar days of the award of the contract and initiate verification of all new employees within 90 days of enrollment. Existing employees assigned to the contract must be run through E-Verify within 90 days of enrollment or 30 days of assignment to the contract, whichever is later. Fate of the FAR Amendment Serious concerns about the FAR E-Verify requirement have led several major organizations to consider litigation to block its implementation. While DHS touts E-Verify’s enhancements, the program has been roundly criticized by users for the inaccuracy of its databases and the enormous effort required to resolve discrepancies. Additional concerns relate to the increased risk of wrongful terminations, exposure to government I-9 audits, heightened costs of doing business with the government, and breaches of employee privacy. Only time will tell whether the FAR amendment will be enjoined. Until then, employers should prepare for implementation. E-Verify Best Practices Assuming that the FAR Amendment takes effect on January 15, 2009, which is a prudent assumption, covered employers should be prepared. They should designate personnel with E-Verify responsibility, review carefully the E-Verify MOU and registration materials, and attend an E-Verify seminar or webinar sponsored by the USCIS. They should identify all contracts that will be subject to the mandatory E-Verify clause and determine employees that are “assigned to the contract.” They should plan to track the costs of E-Verify participation in order to negotiate recovery from the government. Employers also should develop timelines and written policies and procedures for E- Verify processing. Of particular importance in an employer’s E-Verify policies and procedures are those designed to avoid discrimination on the basis of national origin or citizenship status. Among these, employers who participate in E-Verify should: Verify the employment eligibility of all new hires regardless of national origin or citizenship status; Use E-Verify for only after the employee has completed the I-9 Form; Give the employee a TNC promptly; When an employee chooses to contest a TNC, promptly give him a referral notice to SSA or DHS; Allow an employee who is contesting a TNC to continue working during the allowed period; Post required notices of participation in E-Verify and antidiscrimination; Secure the privacy of the E-Verify password and of employees’ personal information; A responsible E-Verify policy should state that the employer will NOT: E-Verify current employees who are not assigned to a contract (unless the employer elects to process all existing employees through E-Verify and notifies DHS); Use E-Verify selectively based on a “suspicion” that an employee is not authorized to work in the U.S., or based on national origin; Use the program to pre-screen employment applicants; Influence or coerce an employee not to contest a TNC; Terminate or take other adverse action against an employee who is contesting a TNC until receiving an FNC; Ask an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency; Ask an employee to provide additional documentation of employment eligibility after obtaining a TNC; Request specific documents in order to use E-Verify’s photo tool feature. Conclusion Our current immigration enforcement policy puts the verification of work authorization at the front lines of national security. Whether unauthorized workers truly threaten the homeland is a legitimate debate as is the benefit to be gained from mandatory participation in E-Verify. Regardless, with only weeks away from the FAR amendment and with DHS Secretary-Designate Napolitano’s commitment to “cracking down” on the employers who hire unauthorized workers, universities with federal contracts should ensure that they are complying with existing I-9 verification requirements and will be up to the task of E-Verifying their workers.
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