Immigration Law Advisory - Executive Order Issued Requiring Federal Government Contractors to Use Electronic Employment Verification (E-Verify) System

In an effort to promote “economy and efficiency” in federal government procurement, President George W. Bush has issued an executive order requiring all federal government contractors to utilize the electronic employment verification, also known as E-Verify.  In his June 6, 2008 order, President Bush states that the government will contract only with providers “who do not knowingly employ unauthorized alien workers” and who have agreed to utilize the E-Verify employment verification program. 

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by US Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA) that allows participating employers to verify electronically the employment eligibility of their newly hired employees by electronically comparing employee information obtained from Form I-9 against the database records of SSA and those of the Department of Homeland Security (DHS).  E-Verify is a free program, available in all 50 states, the District of Columbia, Puerto Rico, Guam and the US Virgin Islands. 

E-Verify electronically compares information entered on Form I-9, Employment Eligibility Verification, with records contained in SSA and Department of Homeland Security (DHS) databases to help employers verify the identity and employment eligibility of newly hired employees.  E-Verify has been touted by DHS as the best means available for determining employment eligibility of new hires and the validity of their social security numbers. 

Though currently described by DHS as “voluntary,” mandatory use of the program by federal contractors iterated in President Bush’s Executive Order is just the latest in a series of actions at state and federal levels aimed to increase employers’ use of E-Verify for employment verification.  The state of Arizona, for example, has passed legislation requiring all employers to use the E-Verify program and similar provisions are being debated in several other states.  Most recently, USCIS granted an additional 17-month extension of work authorization for certain students currently in OPT F-1 status.  One prerequisite for an extension is that the student has completed a science, technology, engineering, or mathematics (STEM) degree.  The other prerequisite is that the student’s employer be enrolled in the E-Verify program. 

Though USCIS recently announced a series of initiatives aimed at enhancing and ameliorating some of the program’s weaknesses, E-Verify remains a controversial program.   Although participation in E-Verify does not provide protection from worksite enforcement, an employer who uses E-Verify for employment authorization is presumed to have not knowingly hired an unauthorized alien.  Proponents of E-Verify claim that the program protects employers and eliminates questions about document validity by placing verification onus on the government.  The program’s opponents argue that relying on government databases, notorious for errors and inaccuracies, might result in a company incorrectly rejecting a qualified worker.  They also cite as concerns opening employers’ employment records to government access and use. 

If your company is a government contractor and/or you believe your company may be affected by this Executive Order or if you have questions about E-Verify, please contact Lynda S. Zengerle at 202.429.8170, or Aleta Turner Okediji at 202.862.5733.