It’s a small but important detail: Are foreign contractor employees legit?

In the endless quest for talent, federal contractors sometimes use foreign employees. A long-running program called E-verify lets employers confirm such potential employees are eligible to work in the United States. The Government Accountability Office (GAO) has found that agencies are not consistent in checking the E-verify system, as part of their contractor oversight. For more, Federal Drive Host Tom Temin spoke with GAO’s Director of Homeland Security and Justice issues, Rebecca Gambler.

GAO Report

Interview Transcript: 

Tom Temin And let’s talk about the E-Verify program. This goes back quite some years. This is not like a five year old electronic digital services plan, but this goes back decades, correct?

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Rebecca Gambler That’s right, Tom. The program that became the E-Verify program was first established as a pilot program back in the mid nineties. And it is a largely voluntary program that employers can use to verify the employment eligibility status of newly hired employees. But as you mentioned, some employers, particularly federal contractors, can be required to use the E-Verify program.

Tom Temin Got it. So the E-Verify, the verification is done to the individual employee, correct, that applies to E-Verify. These are people with green cards, for example.

Rebecca Gambler Right, Tom. So for federal contractors who are required to use the E-Verify program, they use that program for all newly hired employees or individuals who are employed and working on the federal contract. So it applies to all employees of the federal contractor to include newly hired employees as well as those working on the contract.

Tom Temin But as the process works, if you want someone to work for your company, that person has to get the eligibility from the government. How does it work?

Rebecca Gambler Thank you, Tom. Yes. So when employers, and in this case we’re speaking about federal contractors enroll in the E-Verify program, they sign a memorandum of understanding to participate. The program is run by U.S. Citizenship and Immigration Services, or E-Verify. And then employers check employees information against government records to confirm whether or not they’re eligible to work in the U.S.

Tom Temin All right. And then, as you pointed out, all companies do this, but federal contractors have special obligations. The government wants to make sure that they are checking E-Verify as a backup sort of check from what the government has already issued to those employees.

Rebecca Gambler That’s right, Tom. By law, all employers are required to confirm the work eligibility of newly hired employees by checking their documents through a process that people may in here refer to as the I-9 process. The E-Verify program is a program that allows employers to electronically confirm that employment authorization beyond the I-9 process or in addition to the I-9 process. It’s largely a voluntary program for employers. There are about a million employers who are enrolled in the E-Verify program, but some employers to include federal contractors can’t be required to use the E-Verify program.

Tom Temin And you did some samples of federal agencies to find out whether they were checking over their contractors to make sure the contractors were verifying people through I-9 or through E-Verify. And what were the agencies and what did you find?

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Rebecca Gambler The Federal Acquisition Regulation or the FAR requires federal agencies to include a clause in federal contracts for contractors to enroll in and use the E-Verify program, with a few exceptions. So we selected three agencies for our review the Departments of Defense, Homeland Security, and Health and Human Services. And we selected 24 contracts for our sample. And looking at those 24 contracts, we found that 22 of them did include that required clause in their contracts, the clause requiring them to use E-Verify, and two did not. But the other thing that we looked at, Tom, was whether or not for those contracts, the fact that the E-Verify clause was included whether or not that was also noted in the federal procurement data system. And for that piece of the review that we did, we found that not all of the contracts were accurately noted in the federal procurement data system as having the E-Verify clause included in them.

Tom Temin We’re speaking with Rebecca Gambler. She’s director of Homeland Security and Justice issues at the Government Accountability Office. So is this a simple record keeping and compliance type of issue that you found or could there be ineligible people working on federal contracts? Do you think.

Rebecca Gambler So, with regard to this specific finding, it was really about the three agencies in our review taking steps to better ensure that their contracting staff are correctly noting in the federal procurement data system those contracts that include the E-Verify clause. And that’s really important so that federal agencies and Congress and others can have accurate information about the extent to which the required E-Verify clause is being included in federal contracts.

Tom Temin And it has to be in every federal contract that involves labor provided by the contractor.

Rebecca Gambler It needs to be in federal contracts, Tom, that exceed $150,000 and has a period of performance of more than 120 days is not only for work performed outside the U.S. or isn’t only for commercially available off the shelf technology. So contracts that meet those criteria are required to have that E-Verify clause in the contract such that federal contractors would be enrolling and using E-Verify.

Tom Temin Got it. And is there a mechanism, though, that once that clauses in the contract, that the employer is actually using E-Verify. Because you can have something in a contract clause, but that doesn’t mean it happens.

Rebecca Gambler Yes, this is a really important point from our report, Tom. Federal agencies do have responsibilities for monitoring the extent to which federal contractors are complying with the E-Verify clause and actually enrolling in and using the E-Verify program. But among the contracting officials that we interviewed for our work, we found that in a number of cases, federal agencies were not monitoring their contractors compliance with use of the E-Verify program. They identified a variety of reasons for that, including that they thought maybe another agency was responsible for doing it or because they didn’t think they were required to do so. So we made a recommendation, Tom, to [Office of Management and Budget (OMB)] to issue guidance, to clarify expectations for federal agencies to monitor contractor enrollment and end use of the E-Verify program.

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Tom Temin Yes. You had a long list or eight recommendations. That sounds like the top of the list. What are the highlights of the other recommendations?

Rebecca Gambler We also found that [United States Citizenship & Immigration Services (USCIS)] used to provide periodic reports to federal agencies that included a list of federal contractors and whether or not they enrolled in and used E-Verify. We heard from some contracting officials that those reports were helpful for monitoring purposes, but USCIS stopped issuing those reports last year because of data quality issues. And so we recommended that USCIS implement an approach to collect better quality information on federal contractors enrollment in the E-Verify program, and then make sure that they communicate that information to federal agencies to help them monitor contractor compliance. So that was another key recommendation we had, Tom.

Tom Temin So lots of people have work to do. USCIS itself, the Office of Management and Budget and the contracting agencies themselves all have a task here.

Rebecca Gambler That’s right. We made recommendations to the three agencies that were included in the scope of our review, as well as OMB and USCIS. And these recommendations are really important to help ensure that the federal government has accurate information on the extent to which the E-Verify clause is being included in contracts to ensure them that federal agencies are appropriately monitoring federal contractors compliance with the E-Verify clause, and that USCIS is providing quality information to help federal agencies fulfill their monitoring responsibilities.

Tom Temin And did you get a mostly yeah, you’re right kind of reaction to these recommendations?

Rebecca Gambler We did. The agencies to which we made the recommendations, concurred with them and identified actions that they have planned to work toward addressing them.

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