Questions and Answers: Federal Contractors and E-Verify (Revised April 2010)
FEDERAL CONTRACTOR RULE OVERVIEW
What is E-Verify? How does it work? Why do Federal contractors have to enroll in E-Verify?
E-Verify is a free, Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA) that allows employers to verify the employment authorization of their employees. Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and SSA databases.
On June 11, 2008, President George W. Bush amended Executive Order 12989 to direct all Federal departments and agencies to require Federal contractors with a Federal contract that contains the FAR E-Verify clause, to use E-Verify to verify the employment eligibility of employees performing work under a qualifying Federal contract. On November 14, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published a Federal Acquisition Regulation (FAR) final rule (FAR case 2007-013, Employment Eligibility Verification) that implements the amended Executive Order 12989.
FEDERAL CONTRACTS AFFECTED BY THE RULE
If my organization accepts grant monies from the Federal government, am I required to use E-Verify? Do Medicaid and Medicare programs also have to use E-Verify?
What are commercial or noncommercial services and where are those terms defined?
What is the FAR E-Verify clause?
The E-Verify Federal contractor rule requires the insertion of the FAR E-Verify clause into applicable Federal contracts, which requires Federal contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a Federal contract. Beginning September 8, 2009, Federal contracts may contain the FAR E-Verify clause.
If my organization accepts grant monies from the Federal government, am I required to use E-Verify?
If the FAR E-Verify clause is contained in the terms and conditions of your grant then you are required to use E-Verify.
What types of Federal contracts are exempt from the E-Verify Federal contractor rule?
What is considered to be a commercially available off-the-shelf (COTS) item?
A COTS item is a commercial off the shelf item that is sold in substantial quantities in the commercial marketplace and is offered to the government in the same form that is available in the commercial marketplace, or with minor modifications.
Nearly all food and agricultural products fall within the definition of a COTS item. Federal contracts for COTS items are exempt from the rule. Federal contracts for food and agricultural products shipped as bulk cargo, but that otherwise would be considered COTS items, such as grains, oils and produce, are also exempt. Subcontracts that only provide supplies, such as food, are exempt from the E-Verify Federal contractor rule.
Does the E-Verify Federal contractor rule extend to contracts outside the United States?
The E-Verify Federal contractor rule applies only to employees working in the United States, which includes the 50 States, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.
Do any organizations have exceptions to the E-Verify Federal contractor rule?
Yes. The E-Verify Federal contractor rule requires most Federal contractors to use E-Verify for all new employees, regardless of whether the employees are assigned to a Federal contract. However, certain Federal contractors need only use E-Verify to verify the employment authorization of employees assigned to a covered Federal contract. These include:
For specific instructions on exempt organizations, see the Supplemental Guide for Federal Contractors.EXISTING FEDERAL CONTRACTS THAT CAN BE BILATERALLY MODIFIED TO INCLUDE THE FAR E-VERIFY CLAUSE
Does the E-Verify Federal contractor rule apply to existing indefinite-delivery/indefinite-quantity (IDIQ) contracts?
Federal contractors together with government contracting officials may bilaterally modify an existing IDIQ contract to include the FAR E-Verify clause for future orders in accordance with FAR 1.108(d)(3) if:
EMPLOYEES AFFECTED BY THE RULE
Are employees hired on or before November 6, 1986, exempt from the FAR E-Verify clause?
Yes. Employees hired on or before November 6, 1986, and still in continuous employment, cannot be verified in E-Verify. The Immigration Reform and Control Act of 1986 (IRCA) does not allow employers to complete Forms I-9 for these employees. As a result, the FAR also excludes employees hired on or before November 6, 1986.
Form I-9, Employment Eligibility Verification, is the basis for E-Verify. Since Form I-9 cannot be completed for these employees, you cannot perform an E-Verify query on these employees.
How do I know which employees are considered to be performing work directly under a Federal contract that contains the FAR E-Verify clause?
Existing employees assigned to a federal contract are bound by the FAR E-Verify clause. Employees are only considered assigned to a contract if they are directly performing work under the federal contract. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract. E-Verify is not able to make this determination for you. For more information, please consult your legal counsel and/or contracting official.
No. The rule does not exempt employees based on the intermittent nature of the work or the length of time spent performing the work. Note that this employee must complete Form I-9 and be verified through the E-Verify system.
If you have previously verified this employee in the E-Verify system, you may not do so again. However, if the previous verification in E-Verify was done by another employer, you must verify this employee in E-Verify. For more information on employees exempt from the FAR E-Verify clause, see the Supplemental Guide for Federal Contractors.
Are F-1 students who attend a university that is enrolled as a Federal contractor eligible for the 17-month F-1 OPT STEM extension?
For an F-1 OPT STEM student to be eligible for the 17-month extension, the university, as an employer, need only be enrolled in E-Verify. It does not matter how the university enrolls. Employees are eligible for the 17-month OPT STEM extension whether the university enrolls as an employer, a Federal contractor without the E-Verify clause, or a Federal contractor with FAR E-Verify clause. All E-Verify participants will receive an E-Verify ID number that an F-1 OPT STEM student requires when filing Form I-765, Application for Employment Authorization.
I am a university that has a Federal contract with the FAR E-Verify clause but I have not yet enrolled in E-Verify. I have one or more employees who are F-1 OPT STEM students who are seeking a 17-month extension of their OPT status. Do I need verify these employees in E-Verify?
If your organization has a Federal contract with the FAR E-Verify clause and wants to hire students on a STEM extension, you must enroll in E-Verify and use E-Verify for all new hires, not just a student on a STEM extension.
Since you are an organization that is an institution of higher education, you must enroll in E-Verify and verify the employment authorization of your existing and new employees assigned to the Federal contract, but not all newly hired employees. However, your organization may choose to use E-Verify for all new hires. If your organization is both a Federal contractor and wishes to hire F-1 OPT STEMs, it must verify all new hires plus existing employers assigned to the Federal contract as required by the Federal contractor rule.
Must the F-1 OPT STEM student work on a Federal contract and be classified as an "employee assigned to the contract" to qualify for the 17-month extension?
No. The student does not need to be assigned to a Federal contract with the E-Verify clause to be eligible for the 17-month extension. The student still must meet the OPT eligibility criteria regardless of how the university is enrolled.
BEFORE YOUR COMPANY ENROLLS IN E-VERIFY
When are Federal contractors required to enroll in E-Verify?
The E-Verify Federal contractor rule requires Federal contractors to enroll in E-Verify only if they are awarded contracts or have existing IDIQ contracts that are bilaterally modified to contain the FAR E-Verify clause on or after September 8, 2009.
If you have already enrolled in E-Verify and you are awarded a Federal contract containing the FAR E-Verify clause on or after September 8, 2009, you must update your Maintain Company page to designate yourself as a Federal contractor with FAR E-Verify clause and take a Federal contractor tutorial.
How do I enroll my company in E-Verify?
You must enroll your company before you can start using E-Verify. To do so, you must provide your company’s basic contact information and agree to follow the rules of the program. After enrolling, you must sign a Memorandum of Understanding (MOU) that provides the terms of agreement between your company and DHS.
Please click click on the "E-Verify Registration" link in the right-hand column on this page to enroll your company. For specific instructions on how to enroll, see the Supplemental Guide for Federal Contractors.
Once you have enrolled, E-Verify will review your information and activate your account. After the account is activated, you will receive an e-mail with your login instructions, user ID, and password.
My company was just awarded a Federal contract and the E-Verify Federal contractor rule is now in effect. How soon must my company enroll in E-Verify?
The contractor and any covered subcontractors must enroll in E-Verify within 30 calendar days of the award date of a contract or subcontract that contains the FAR E-Verify clause.
I am a Federal contractor with the FAR E-Verify clause. Which sites must I designate as hiring sites in E-Verify?
If you are not currently enrolled in E-Verify and are choosing your hiring sites, during enrollment, you must designate every hiring site at which you will:
1) Hire new employees, and/or
If you are already enrolled in E-Verify and your company has been using E Verify at only certain hiring sites, you must now designate all of your company’s hiring sites and update your Site Verification page.
Is it possible to download and review the FAR tutorial before registering?
No. Only users that enroll in E-Verify as Federal contractors or existing participants who update their status in the Maintain Company page to indicate that they are a Federal contractor with FAR E-Verify clause will be able to view and complete the E-Verify Tutorial for Federal Contractors.