Federal Acquisition Regulation

The E-Verify program is currently voluntary for employers.  However, an Executive Order instructs all Federal Agencies to require contractor participation in E-Verify as a term of future contracts.

Federal contractors and subcontractors are required to use the E-Verify system to verify an employee’s eligibility to work in the United States.  An employer is only required to enroll in E-Verify if and when it enters into a federal contract or subcontract that requires participation in E-Verify.

Federal Acquisition Regulation (FAR)

The government’s E-Verify website is constantly updated with information designed to assist affected federal contractors and their employees.  An employer must recognize that those employees who manage E-Verify must be thoroughly trained in E-Verify procedures and policies.

Failure to use the E-Verify program appropriately may lead to employer liability, including back wages for employees who have been subject to adverse action and expulsion from the program.

As voluntary participants in E-Verify, employers are required to verify all new hires at designated hiring sites, following the completion of Form I-9.  The FAR rule covers verification of existing employees when they are assigned to work on covered federal contracts.

If awarded a federal contract, an employer will need to register with E-Verify or update the existing company profile and complete the refresher tutorial.  When contractors win a bid on a federal contract containing a FAR E-Verify clause, the contractor and covered subcontractors on the project are required to enroll in E-Verify program within thirty (30) calendar days of the award date.

This rule also applies to modifications of indefinite and indefinite-quantity contracts.
If the remaining performance period extends 6+ months and the amount of work or number of orders is substantial, the contract should be modified to include the FAR clause.

Following enrollment, an employer has ninety (90) days to initiate verification queries for employees already on staff who will be working on a contract and to begin using the E-Verify system to verify newly hired employees.

After the ninety (90) day phase-in period, an employer will be required to initiate verification of each newly hired employee within three (3) business days after the start date.

To meet the three (3) day requirement, an employer may initiate the verification of newly hired employee before the start date if the employee has accepted the job offer and completed the Form I-9.

An employer must continue to use E-Verify for the life of the contract for all new hires whether or not employees are assigned to contract.

The E-Verify clause is required for prime federal contracts with a period of performance longer than 120 days and value above $100,000.  It also applies to subcontractors if the prime contract includes the clause.  For subcontracts that flow from the prime contract, the rule extends E-Verify requirements to subcontracts for services or for construction with a value over $3,000.

FAR rule exempts contracts:

  1. For commercially available off-the-shelf (COTS) items (or minor modifications to COTS items) and related service
  2. Of less than a simplified acquisition threshold ($100,000)
  3. Less than 120 days AND where all work is performed outside U.S.

COTS items are those items sold in large quantities in the commercial marketplace and offered to the government in the same form available in commercial marketplace.  Nearly all food and agricultural products fall within COTS items.

Employees with active federal agency HSPD-12 credentials and those holding active U.S. government security clearance in accordance with the National Industrial Security Program Operating Manual do not need to be verified.

E-Verify is not required for all new hires if the institution is of higher learning, state and local government, or government of federally recognized Indian tribes sureties performing under a takeover agreement with a federal agency.  Such entities may choose to only use E-verify on new and existing employees assigned to cover the federal contract.