The E-Verify Federal contractor rule requires that the FAR E-Verify clause be added to applicable federal contracts issued on or after September 8, 2009. The clause is a term in the contract in which federal contractors commit to use E-Verify to verify that all of their new hires and all employees (existing and new) assigned to a federal contract are authorized to work in the United States.
Yes. Most federal contractors are required to use E-Verify for all newly hired employees, regardless of whether the employees are assigned to a federal contract, and all existing employees assigned to the contract. However, certain organizations with applicable federal contracts containing the FAR E-Verify clause qualify for an exception that requires them to use E-Verify, but permits them to choose to use E-Verify only to verify the employment authorization of employees assigned to a covered federal contract (both new hires and existing employees, but only new hires and existing employees assigned to the contract). These organizations include:
- Institutions of higher education (as defined at 20 U.S.C. 1001(a))
- State and local governments
- Governments of federally recognized Native American tribes
- Sureties performing under a takeover agreement entered into with a federal agency pursuant to a performance bond
For specific instructions on organizations that qualify for exceptions, see the E-Verify Supplemental Guide for Federal Contractors at www.dhs.gov/e-verify.
A federal contract is considered exempt from the FAR rule if any of the following apply:
- It is for fewer than 120 days
- It is valued at less than $150,000, the simplified acquisition threshold
- All work is performed outside the United States
- It includes only commercially available off-the-shelf (COTS) items and related services
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.”
A COTS item is an item sold in substantial quantities in the commercial marketplace and offered to the government in the same form that is available in the commercial marketplace, or with minor modifications. Federal contracts for COTS items are exempt from the E-Verify federal contractor rule.
The definition of commercial items is available in the FAR Part 2, which is available online at www.acquisition.gov.
Nearly all food and agricultural products fall within the definition of a COTS item. Federal contracts for COTS items are exempt from the E-Verify federal contractor 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 also exempt.
No. 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, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands (CNMI).
Your organization will be required to use E-Verify if the terms and conditions of your grant contain the FAR E-Verify clause. Review your grant for the FAR E-Verify clause and check with your contracting official if you have any questions.