What is E-Verify?
E-Verify is a free, web-based program that allows employers to verify an employees’ eligibility to work in the United States. The program is operated in partnership by the Department of Homeland Security (DHS), the Social Security Administration (SSA) and the U.S. Citizenship and Immigration Services (USCIS).
How does E-Verify Work?
Employers input information from an employee’s Form I-9 and the E-Verify program compares that information with what is on file with DHS, SSA and USCIS. Within moments, the employer is notified of the employee’s eligibility to work or provided a notice that further action or information is needed. For more information, review the E-Verify Enrollment Checklist and the Enrollment Process.
Who Must Use the E-Verify Program?
While all employers must complete a Form I-9 for employees, participation in E-Verify is voluntary for most employers. Federal contractors awarded a new contract on or after September 8, 2009, are required to use the E-Verify program. Some states also have regulations regarding the use of E-Verify. LawLogic has created an interactive map that allows viewers to see the E-Verify requirements in their state. CLICK HERE to view and use the map.
What are E-Verify posting requirements?
Employers who participate in E-Verify must post the E-Verify and Right to Work posters, in English and Spanish, at the company’s hiring location.
The posting is required for:
- Federal contractors
- Employers in states required to use E-Verify
- Employers who voluntarily participate in the E-Verify program
E-Verify and Federal Contractors
A majority of federal contractors fall under what is known as the E-Verify Federal Contractor Rule. This Rule includes the Federal Acquisition Regulation (FAR) E-Verify Clause.
Certain criteria must be met in order for federal contracts to qualify for the FAR E-Verify Clause:
- The contract was awarded on or after September 8, 2009 and includes the FAR E-Verify Clause
- The contract is for more 120 days or longer
- The contract’s value exceeds the simplified acquisition threshold;
- Some of the work must be performed in the U.S.
If you are a prime federal contractor and you use subcontractors, these subcontractors are also required to use the E-Verify program if:
- You as the prime federal contractor, are under a contract that includes the FAR E-Verify Clause
- The subcontract is for commercial or noncommercial services or construction
- The subcontract is valued more than $3,500
- The subcontract includes work performed in the U.S.
Indefinite-Delivery/Indefinite-Quantity (IDIQ) Contracts
Government contracting officials may modify IDIQ contracts on a bilateral basis to include the FAR E-Verify clause for future orders, in accordance with FAR 1.108(d)(3), when:
- The remaining period of performance extends at least six months after the effective date of the rule; and
- The amount of work or number of orders expected under the remaining period of performance is substantial.
If the FAR E-Verify clause is included in a modified IDIQ contract, the employer must participate in E-Verify within 30 calendar days of the modification date.
Exemptions and Exceptions
Under certain instances, contracts and employees may be exempt from the E-Verify federal contractor rule.
Employers whose contracts are exempt from the E-Verify federal contractor rule are not required to enroll in E-Verify. A contract is considered exempt if any one of the following applies:
- It is for fewer than 120 days
- It is valued at less than the simplified acquisition threshold
- All work is performed outside the U.S.
- It includes only commercially available off-the-shelf (COTS) items and related services
NOTE: FAR subcontracts do not have these same exemptions and exceptions
An employer may voluntarily enroll in E-Verify at any time, but may not create cases for existing employees unless the employer holds a federal contract that includes the FAR E-Verify clause and is enrolled in E-Verify as a “Federal Contractor with the FAR E-Verify clause.”
Employees Exempt from the E-Verify Federal Contractor Rule
The following employees are exempt from the E-Verify requirement. Employers are not permitted to verify these employees in E-Verify:
- Employees hired on or before November 6, 1986 and continuing in employment with the same employer
- Employees hired in the Commonwealth of the Northern Mariana Islands (CNMI) on or before November 27, 2009
- Employees previously confirmed as authorized to work in E-Verify and continuing in employment with the same employer (and do not fall within another exception that would justify re-verification with E-Verify)
Employees Who May Be Exempt from the E-Verify Federal Contractor Rule
Federal contractors are not required to verify the following employees in E-Verify, but may choose to verify them:
- Employees who normally perform support work such as general company administration or indirect or overhead functions and do not perform any substantial duties applicable to the contract. The employer must verify these employees if the employee is a new hire or if the employer chooses to verify its entire workforce.
- Employees who hold an active confidential, secret, or top secret security clearance in accordance with the National Industrial Security Program Operating Manual (NISPOM).
- Employees who have undergone a completed background investigation and who have been issued credentials pursuant to Homeland Security Presidential Directive – 12 (HSPD-12 credential).
NOTE: Transportation Worker Identification Credential (TWIC) cards are not HSPD-12 credentials.
Entities That Are Exceptions to the E-Verify Federal Contractor Rule
The E-Verify federal contractor rule generally requires use of E-Verify for all new employees, regardless of whether they are assigned to a federal contract. The following organizations, however, awarded a federal contract that includes the Federal Acquisition Regulation (FAR) E-Verify clause are only required to use E-Verify for new hires and existing non-exempt employees who are working directly under a covered contract:
- State and local governments
- Institutions of higher education (as defined at 20 U.S.C. 1001(a))
- Governments of Federally recognized Indian tribes
- Sureties performing under a takeover agreement entered into with a Federal agency under a performance bond
For more information about federal contractors and the E-Verify program, review the Supplemental Guide for Federal Contractors.
Verifying New Employees on Form I-9
Newly hired employees must complete Form I-9 Employment Eligibility Verification, regardless of whether they are assigned to a federal contract. Employers must comply with Form I-9. E-Verify employers have additional employment verification requirements for Form I-9 that other employers do not have:
- If an employee chooses to present a List B document, the employer may only accept a List B document that contains a photo (if the employee cannot provide such a document because of religious objections, contact the E-Verify Contact Center at 888-464-4218).
- If an employee chooses to present an Employment Authorization Document (Form I-766), Permanent Resident Card (Form I-551) or U.S. Passport or Passport Card, the employer must make a copy of the document and retain it with the employee’s Form I-9.
- Employees must have a Social Security number (SSN) to be verified using E-Verify. If an employee has applied for but has not yet received his or her Social Security number (i.e., if he or she is a newly arrived immigrant), make a note on the employee’s Form I-9 and set it aside. The employee should be allowed to continue to work. As soon as the Social Security number is available, the employer can create a case in E-Verify using the employee’s Social Security number.
Verify Existing Employees Using Form I-9
In order to comply with the Federal Acquisition Regulation (FAR) rule, a federal contractor must verify all new hires and existing employees assigned to the federal contract. Federal contractors may also opt to verify their entire workforce with E-Verify. When the employer chooses this option, the employer must decide how to verify its employees by completing three steps.
- Step 1: Decide which employees the employer wants to verify.
- Step 2: Determine which existing employees are exempt or have special requirements relating to the verification process.
- Step 3: Complete new Forms I-9 or update existing Forms I-9
CLICK HERE to review some FAQs for Federal Contractors.
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