FAR E-Verify

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 181-205

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8.01 FAR E-VERIFY EXECUTIVE ORDER

The Federal Acquisition Regulation (FAR) contains the rules that govern the Federal

Acquisition Regulation System.1 The government awards numerous contracts each scal

year worth hundreds of billions of dollars. The FAR System governs the acquisition pro-

cess by which federal government agencies acquire goods and services with appropriated

funds.

Congress gave the president authority under the Federal Property and Administrative

Services Act of 1949 (FPASA) to “prescribe policies and directives” governing procure-

ment policy “that the President considers necessary to carry out” that Act and that are

“consistent” with the Act’s aim of providing “the Federal Government with an economical

and efcient” procurement system.2

President William Clinton issued Executive Order 12989,3 which found that the pres-

ence of unauthorized aliens on a contractor’s workforce made that workforce less stable

and reliable than the workforces of contractors who do not employ unauthorized aliens.

On June 6, 2008, President George W. Bush signed Executive Order 13465, the Econ-

omy and Efciency in Government Procurement Through Compliance with Certain Immi-

gration and Nationality Act Provisions and Use of an Electronic Employment Eligibility

Verication System.4 That order amended the Clinton Executive Order 12989 to require

executive departments and agencies that enter into contracts to require as a contract con-

dition that the contractor agree to use an electronic employment eligibility verication sys-

tem designated by the Secretary of Homeland Security to verify the employment eligibility

of all persons hired during the contract term by the contractor to perform employment

duties within the United States and all persons assigned by the contractor to perform work

within the United States on the federal contract.5

1. 48 C.F.R. § 1.101.

2. 40 U.S.C. § 121, 101.

3. 61 Fed. Reg. 6091 (Feb. 15, 1996).

4. Exec. Order No. 13465, 73 Fed. Reg. 33285 (June 11, 2008).

5. Id.

FAR E-Verify

182 Immigration Compliance and Best Practices

Executive Order 13465 also ordered that the Secretary of Defense, the Administrator

of General Services, and the Administrator of National Aeronautics and Space Adminis-

tration (NASA) amend the FAR to “implement the debarment responsibility, the employ-

ment eligibility verication responsibility, and other related responsibilities assigned to

heads of departments and agencies under this order.”6

8.02. FAR E-VERIFY REGULATION

On June 9, 2008, Michael Chertoff, then the Secretary of the Department of Homeland

Security, designated the E-Verify system as the electronic employment eligibility verica-

tion system to be used by federal contractors to comply with Executive Order 13465.7 To

further the implementation of the executive order, the Civilian Agency Acquisition Council

and the Defense Acquisition Regulations Council (Councils) published a regulation that

amended the FAR to insert a contract clause in government procurement contracts that

requires government contractors and subcontractors to join E-Verify. The rule required

that approximately 3.8 million employees be veried through the E-Verify system.8 A

covered federal contractor must use the E-Verify electronic verication system for new

hires and the employees who are assigned to the contract and may elect to also use the

E-Verify system to verify its entire workforce within 180 days of the required notice to

the U.S. Department of Homeland Security (DHS).9 This FAR nal rule applies to solici-

tations issued and contracts awarded after the effective date of the amended nal rule on

September 8, 2009.10

Under the FAR nal rule, also known as the E-Verify federal contractor rule or the

FAR E-Verify rule, employers are required to enroll in E-Verify if and when they are

awarded a federal contract or subcontract that requires participation in E-Verify as a term

of the contract.11 The rule requires the insertion of the E-Verify clause into applicable fed-

eral contracts, committing government contractors to use E-Verify for their new hires and

all employees (existing and new) directly performing work under those contracts.12 With

the publication of the E-Verify Supplemental Guide for Federal Contractors, the DHS

6. Id.

7. 73 Fed. Reg. 33837 (June 13, 2008).

8. 73 Fed. Reg. 67651 (Nov. 14, 2008), amending the FAR at 48 C.F.R. Pt. 2, 22, and 52. DOD,

GSA, and NASA published amendments postponing implementation of the FAR E-Verify nal rule

to allow the Obama administration’s review of the nal rule’s legal basis. 74 Fed. Reg. 5621 (Jan.

30. 2009); 74 Fed. Reg. 17793 (April 17, 2009). Implementation began on September 8, 2009.

74 Fed. Reg. 26981 (June 5, 2009).

9. 48 C.F.R. § 22.1802(c).

10. U.S. C  I S, E-V S G  F

C § 1.1.2 (2017) (hereinafter E-V S FAR G).

11. 48 C.F.R. § 22.1802(b).

12. Id.