The Department of Homeland Security (DHS) has clearly thrown its support behind the continued expansion of the E-Verify web-based employment authorization system. Although the statute creating E-Verify makes clear that the system is voluntary, several states have passed laws requiring certain employers to use the system and the new federal contractor regulation (which became effective on September 8) will force E-Verify on an estimated 168,000 government contractors. As changes to E-Verify requirements change frequently, it is necessary to periodically review the status of laws requiring employers to use E-Verify.

  • New federal contractor regulation. The federal contractor/E-Verify regulation requires certain federal contracts to include a clause committing the government contractor to use E-Verify for their new hires and all employees (existing and new) assigned to any work on the contract. (Subject contractors have the option of verifying their entire workforce, an option many employers are likely to choose since determining exactly which workers are “assigned to the contract” would be a difficult task.) The rule requires the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold of $100,000. The rule only covers subcontractors 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 construction with a value over $3,000. 
  • Nebraska legislation. Legislative Bill 403 (LB 403) went into effect on October 1. It requires public employers (all state agencies, boards and commissions) to use E-Verify for all newly-hired persons performing services within the state. In addition, agency contracts issued on or after October 1 must contain a clause requiring the contractor to use E-Verify for new hires. 
  • State E-Verify laws. The Nebraska legislation is similar to laws passed (or implemented by executive order) in several other states, including Arkansas, Georgia, Colorado, Rhode Island, Minnesota, Missouri and Utah. Arizona has the broadest E-Verify law requiring all employers to use the system. Mississippi is phasing in the E-Verify requirement – currently employers with 100 or more employees must use E-Verify. South Carolina is also phasing in an employment verification requirement – currently, employers with 100 or more employees must use E-Verify OR require newly-hired employees to present an approved driver’s license. Note that since only federal contractors are permitted to use E-Verify for existing employees, the state requirements apply only to new hires.

Note: This article was published in the October 2009 issue of the Immigration eAuthority.

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