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Executive Order 12989

On June 9, 2008, President Bush amended Executive Order 12989 to require all federal contractors (and subcontractors) to participate in E-Verify. Specifically, the amended Executive Order provides, “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.” 

Contractors and Subcontractors

The 1996 version of E.O. 12989, signed by President Clinton in 1996, provides that the term “contractor” has the meaning assigned in subpart 9.4 of the Federal Acquisition Regulation. Exec. Order No. 12,989, at Sec. 2., 61 Fed. Reg. 6091 (Feb. 12, 1996). Section 9.403 of the Federal Acquisition Regulation, in turn, defines “Contractor” as follows:

“Contractor” means any individual or other legal entity that—

(1) Directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or
(2) Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor.

48 C.F.R. § 9.403.

The E-Verify Program

Although the amended Executive Order does not identify the program by name, the “electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility” is E-Verify. The E-Verify program—previously known as the “Employment Eligibility Verification program” and before that the “Basic Pilot” program—is a product of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See IIRIRA, Pub. L. 104-208, 110 Stat. 3009, Title IV, Subtitle A. 

For an overview of the E-Verify Program, you may find the following useful:

• The E-Verify User’s Manual;
• The E-Verify Memorandum of Understanding; and
• The E-Verify Process Flow by the GAO (excerpted from GAO’s congressional testimony).

Discrimination Concerns

Misunderstandings regarding an employer’s actual obligations with respect to immigration compliance can create considerable exposure for alleged discrimination in violation of Title VII, Section 1981, and the Immigration Reform and Control Act. This is particularly true given the acknowleded 4.1% error rate found in the Social Security Administration’s database. For a discussion of potential discrimination issues related to E-Verify (and the related off-again, on-again DHS Social Security No Match Rule), please see Boulette & Golden’s May 2008 Social Security No Match Paper.

Questions

The foregoing is not intended as legal advice. If you would like guidance on E-Verify or have questions regarding Executive Order 12989, please contact one of our attorneys.