the far e-verify rule: a coverage and ... ppt.pdf washington, d.c. brussels san francisco shanghai...

www.khlaw.com

Washington, D.C. ● Brussels ● San Francisco ● Shanghai

Mary PivecPartner

Keller and Heckman LLP1001 G Street, N.W.

Washington, DC 20001202-434-4298

[email protected]

THE FAR E-VERIFY RULE:A COVERAGE AND COMPLIANCE BRIEFING

2│ www.khlaw.com │ KELLER AND HECKMAN LLP Copyright © 20092

All Federal Acquisition Contracts for

• Commercial Services (excluding servicesprovided by a COTs vendor in connectionwith the sale),

• Non-commercial Services, and

• Construction

Awarded on or after September 8, 2009

Valued over $100,000

Performance over 120 Days

Contracts Subject to FAR E-Verify


Employees Subject to FAR E-Verify

All existing employees of the contractingentity directly assigned to a coveredcontract

All new hires of the contracting entity –whether or not assigned to a coveredcontract


Includes

Hired after 11/6/86

Directly performing contract work

Excludes

support staff who perform indirect oroverhead functions and who don’t performsubstantial contract work

At the Contractor’s election, may exclude

All employees holding top secret securityclearance

“Employees Assigned to Contract” forPurposes of FAR E-Verify


Prime contractors must include the E-VerifyClause in all subcontracts for workconnected to the award of a covered Primecontract regardless of the term orintermittent nature of subcontractorperformance, provided the subcontractinvolves commercial, non-commercial orconstruction services and exceeds $3,000.

Prime contractors are liable for non-compliance by all subcontractors, regardlessof tier

Prime Contractor Flow Down Obligationand Liability Under The FAR E-Verify Rule


If Affiliate provides services valued inexcess of $3000 for performance of acovered contract, Affiliate likely is asubcontractor subject to E-Verify

Possibilities:• Personnel services

• Equipment leasing

• Materials purchasing

• Business management

Affiliates of the Contracting Entity


True Independent Contractors

• Still must enroll in E-Verify if paid $3000and work 30 days or more

• E-Verify run through obligation dependson whether operates as self-employed

Misclassified Independent Contractors

• Somebody’s employee

• Prime has liability if no I-9 and no E-Verifyconfirmation as work authorized

Touchy Independent Contractor Issues


Contract Award

Day 1

Contractor Must Enroll in E-Verify and Sign MOU, orUpdate Registration to Federal Contractor Status

No later than Day 31


Contractor Must Have EnteredE-Verify Queries for ExistingEmployees Assigned to theContract or 30 Days AfterAssignment, Whichever IsLater; Begin E-Verifying AllNew Hires Companywide within3 Work Days

FAR E-Verify Compliance Timeline


Contract Award

Day 1

Contractor Must Enroll in E-Verify and Sign MOU anddesignate Total Workforce option



Contractor Must Have EnteredE-Verify Queries for Total USWorkforce and Begun E-Verifying All New US HiresCompanywide within 3 WorkDays

Total Workforce Option

USCIS Clarification: Contractors choosing the “Total Workforce” Option at time ofEnrollment are not permitted to change this decision at a later time.


Identify E-VerifyAwards

Notify Subs – ModifySubcontracts

Review MOU Enroll in E-Verify Designate E-Verify

Compliance Czar, E-Verify Sites andAuthorized Users

Purchase necessarycomputer equipmentand web access

Modify handbooks

Notify Unions – engagein impact and effectsbargaining if requested

Train Managers,Supervisors and Users

Identify all existingemployees subject to E-Verify

Audit I-9s to E-Verifystandards or preparenew I-9s for the entireworkforce

Post DHS & OSCNotices

Suggested E-Verify Compliance Countdown

Checklist for Federal Contractors


Before initiating E-Verify queries

Must confirm names, date of birth, immigration status, ID numbersand work authorization status by speaking with each employee

Employee must provide a social security number in Section 1 Existing I-9s must be segregated into those which may be updated

with the employee’s assistance and those requiring a new I-9 If the employee previously presented a US passport or I-551 that was

valid when presented but it has since expired, and work authorizationis still current, the employer is prohibited from requiring the employeefrom presenting a currently valid US passport or I-551 for updatingpurposes

I-9s must be corrected, unless DHS rules require a new I-9 Selective application of the new I-9 requirement could result in liability

for national origin or immigration status discrimination Retain a copy of I-551 or I-766 if presented

I-9 Audit Option


Presented an expired document on old I-9 Designated alien status in Section 1 and work

authorization has expired Presented List B document lacking photo or you can’t

tell because you didn’t retain the document Presented a document such as a Certificate of

Naturalization or Form I-688 that was acceptable at thetime of completion but not under current rules

Was a non-citizen national at the time of completion andcouldn’t complete the Section 1 attestation

Changed immigration status Changed name Failed to complete prior I-9 properly

When USCIS Says An Employee MustComplete a New I-9 Prior to E-Verify Query


Mandatory Postings


Initial Verification Query


Case Details Page Reporting SSA TNC


The Employer’s Representative must take the following actions:

Print TNC Notice from the E-Verify system Meet with the Employee to determine if he will contest – no coercion

permitted Get Employee to check off his decision and sign and date the Notice Sign and date the Notice, certifying the authenticity of the Employee’s

signature and affirming, to the best of Representative’s knowledge,that the Employee’s choice was knowing, voluntary and uncoerced

Record the Employee’s choice in the E- Verify system If the Employee contests SSA TNC, must print out SSA Referral Letter

and instruct Employee to present it at a Social Security office within 8federal work days or be subject to FNC; SSA automatically notified

If the Employee contests DHS TNC, print the DHS Referral Letter andinstruct Employee to contact DHS through its toll free hot line within 8federal work days or be subject to FNC; DHS automatically notified

If Employee declines contest, system will report FNC

Required Procedure if Employee QueryResults in TNC


Activated automatically when Employer enters I-551 or I-766 data If available in DHS database, photo is displayed in Case Report Employer compares photo on screen to the photo on the Employer’s copy of the I-551 or I-766and clicks one of the following:

•“Yes” – Reasonable Certainty that photographs are identical•“No” -- Photographs are not identical•“Cannot Determine”

If not “Yes” – Employer must print out Photo TNC Notice, present it to Employee, ask if hewishes to contest, execute Notice, report response, print DHS Photo Referral Letter, and directEmployee to call DHS hot-line within 8 Federal work days The Employer mails a copy of the Employee’s document to DHS as directed at DHS expense

Photoscreen Procedure


Using E-Verify to prescreen job applicants Selectively using E-Verify based on citizenship, immigration or

national origin status E-Verifying existing employees not subject to the FAR E-Verify

clause or “Total Workforce” option Requiring alien workers to produce I-551 or I-766 cards –

unless they produce a restricted Social Security Card Requiring any employee to obtain a printout from the Social

Security Database or other written verification of the SocialSecurity number from the SSA

Absent knowledge that the employee is not work authorized,taking adverse action before FNC is issued

Accessing the E-Verify system to investigate an employee’simmigration status after receipt of “work authorized”confirmation during the same period of employment

Forms of Prohibited Discrimination


No. If you follow all the rules, and E-Verify reportsthat an employee is “work authorized,” you get arebuttable presumption you didn’t violate theknowing hire provisions with respect to thatemployee

If you continue to employ any worker after receivinga FNC notice, there will be a rebuttable presumptionthat you knowingly violated the sanctions law, if theemployee turns out to be unauthorized

If you fail to resolve cases in the E-Verify systemafter a FNC is reported, you are subject of a civilmoney penalty ranging from $550-$1000 per case

Does E-Verify Provide Employer SanctionsImmunity?


No - Employer is solely liable if it gets sued

The 1996 statute authorizing new hireverifications provides civil immunity foractions taken in good faith - raised as goodfaith defense to wrongful discharge ordiscrimination claim

No law or regulation provides immunity fromsuit by existing workers

Does the Government Indemnify an Employer for ActionsTaken Based on E-Verify Information?


Contractor found to have used E-Verifyto discriminate against individuals inhiring and employment

Contractor’s MOU Terminated by DHS

Contractor found to have knowinglyhired unauthorized workers orcommitted immigration crimes

Debarment Grounds


Make compliance material term insubcontract

Require independent third partyaudit and certification ofcompliance after 180 days

Require Subcontractor certificationof compliance on weekly payrolls

Require Subcontractor cooperationin any internal or Gov’tinvestigation or audit relating to E-Verify, I-9 or immigrationcompliance (including documentfraud and identity theft)

Require prompt notification of Gov’tinvestigation of Subcontractorand/or its Subcontractors relatingto E-Verify, I-9 or immigrationcompliance (including documentfraud and identity theft)

I-9 Subcontractor Employees Audit Subcontractor I-9s Interrogate Subcontractor

employees regarding immigrationstatus

Require Subcontractors to registeryou as their Designated Agent in E-Verify system

Accessing the E-Verify database toinvestigate the immigration statusof Subcontractor employees

Policing Subcontractors – OurRecommendations


Conduct detectable through DHS data mining• Excessive E-Verify use including prescreening

applicants• Under-use of E-Verify including selective

verification• Failure to resolve and close FNC cases• Use of duplicate employee names and SSN#s

Complaints by Government investigators, civil rightsgroups and unions alleging unauthorized ordiscriminatory use of E-Verify data

Contract auditor and COTR referrals

DHS Audit Triggers

www.khlaw.com

Washington, D.C. ● Brussels ● San Francisco ● Shanghai

Mary PivecPartner

Keller and Heckman LLP1001 G Street, N.W.

Washington, DC 20001202-434-4298

[email protected]

Thank You!

the far e-verify rule: a coverage and ... ppt.pdf washington, d.c. brussels san francisco shanghai...

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