<p>Following President Bush&rsquo;s June 6 executive order directing federal
agencies to require their contractors to use the federal E-Verify
system, the Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council proposed a rule on June 12 to require
contractors and subcontractors that perform work on the federal
government&rsquo;s domestic construction projects to use E-Verify. The prosposed rule was reported in <em>ASA Today</em>, the online newsletter of the
American Subcontractors Association (ASA).</p>
<p>ASA
reported that the proposal to amend the Federal Acquisition Regulation
would insert a clause in prime contracts for federal construction
requiring contractors to:</p>
<ul>
<li>Enroll in E-Verify within 30 calendar days of contract award.</li>
<li>Use E-Verify to verify the employment eligibility of all employees assigned to the contract within 30 days of contract award.<br /> Verify the employment eligibility of new employees assigned to the contract within three days.<br /> </li>
<li>Flow down the same requirements to all subcontracts on the project that exceed $3,000.<br /> </li>
</ul>
<p>Currently voluntary, E-Verify is an Internet-based system for
submitting employees&rsquo; names, dates of birth, and Social Security
numbers to check against federal databases for work authorization
purposes. If the U.S. Department of Homeland Security or the Social
Security Administration finds a mismatch in the submitted information,
the employer and employee must follow a confirmation process. The
acquisition councils estimate that the average cost for a contractor
with 50 employees to participate in E-Verify for the first year is
$1,168.</p>
<p><img alt="Immigration Status" class="image-left" height="303" src="/images/uploads/immigration.jpg" style="float: left;" width="266" />Employers that participate in E-Verify must also sign a
Memorandum of Understanding (MOU) with DHS and SSA agreeing to abide by
current legal hiring procedures and to ensure that no employee will be
unfairly discriminated against in the E-Verify process. In the written
explanations accompanying their proposed rule, the acquisition councils
said they would consider compliance with the MOU &ldquo;a performance
requirement under the terms of the Federal contract or subcontract.&rdquo;</p>
<p>ASA
is seeking members&rsquo; input about the proposed rule&rsquo;s impact on them. ASA
has posted a link to the proposed rule on the ASA Web site at
www.asaonline.com. Some state governments also see E-Verify as part of
the answer to the federal government's flawed immigration policies. In
Missouri, a new law requires all employers receiving money from the
state or tax credits in excess of $5,000 to use E-Verify. A new law in
South Carolina also requires any company doing business with the state
to use the system.</p>
<p>The Associated General Contractors of America (AGC) said earlier
this week that it questioned the use of E-Verify as an immigration
status remedy. "While AGC supports the full enforcement of our
immigration laws,
AGC remains committed to their comprehensive reform, and the
association questions whether this piecemeal measure will hasten or
delay the day when we will see that kind of reform," Stephen E.
Sandherr, chief executive officer of AGC of America said. "Ironically,
we also find ourselves questioning
whether the executive order is itself in violation of our current
laws," he added.</p>
<p>The new requirement will take effect only after the relevant federal
agencies revise the regulations that govern federal contracts. AGC&nbsp; said it will
carefully examine the new executive order and the proposed revisions of
the regulations to determine if the changes would cause problems for
the contractors responsible for constructing and maintaining the
federal infrastructure. AGC also will investigate whether or not the
changes conflict with the current immigrations laws, and if so, may
contemplate even stronger action.</p>
<p>Immediately, AGC said it will also begin seeking further guidance on
a host of questions that the executive order raises, including:</p>
<ul>
<li>"Who is a "contractor" for the purposes of the executive
order? Does it include a subcontractor? Does it include a material
supplier? Does it include a vendor of commercial items?"</li>
<li>"What
&ndash; if any &ndash; are the procedures and deadlines for employers and/or
employees to correct the many mistakes that even the E&ndash;Verify system
will inevitably make?"</li>
<li>"How should employers deal with
individuals who can satisfy the pre&ndash;existing rules and standards &ndash;
which Congress has written into the Immigration and Nationality Act &ndash;
but not the E&ndash;Verify system that the President has mandated entirely on
his own? How do employers avoid getting caught in the middle?"</li>
<li>"What
are the penalties for non&ndash;compliance? Should federal contractors
anticipate debarment for even honest mistakes made in ignorance of
technical requirements?"</li>
</ul>