When Must Federal Contractors Use E-Verify?

Many federal contractors must use E-Verify, the online system run by DHS through U.S. Citizenship and Immigration Services that compares information from an employee's Form I-9 with DHS and Social Security Administration records to confirm employment eligibility. The requirement comes from the Federal Acquisition Regulation, not from a general E-Verify mandate, so it turns on the contract clause. It is one part of broader compliance training topics for contractors.

Which contracts include the clause. FAR 22.1803 requires contracting officers to include the clause at FAR 52.222-54, Employment Eligibility Verification, in solicitations and contracts that exceed $150,000. The clause is left out when the work is performed only outside the United States, when the period of performance is under 120 days, or when the contract covers only commercially available off-the-shelf items and related services.

What the contractor must do. Under FAR 22.1802 and 52.222-54(b), a contractor that receives the clause must:

• Enroll in E-Verify within 30 calendar days of contract award, for a contractor not enrolled at the time of award (FAR 52.222-54(b)(1)).
• Within 90 calendar days of enrollment, begin using E-Verify for new hires, verifying each within 3 business days after the date of hire.
• Verify employees assigned to the contract within 90 calendar days after enrollment (or after award, for a contractor already enrolled), or within 30 calendar days after assignment, whichever date is later.

Limited verification groups. Institutions of higher education, state, local and tribal governments, and sureties may choose to verify only employees assigned to the contract. A contractor may elect to verify its whole existing workforce hired after November 6, 1986, and then has 180 days from enrollment, or from notifying E-Verify Operations of the election, to do so. Verification is not required for employees who hold an active Confidential, Secret or Top Secret clearance, or who have been issued HSPD-12 credentials.

Subcontractors. The contractor must include the clause in subcontracts for services or construction with a value over $3,500 that include work performed in the United States (FAR 52.222-54(e)).

Waivers. Only the head of the contracting activity may waive the requirement, and that authority may not be delegated.

Related anti-discrimination rules. Using E-Verify does not change an employer's duties under the anti-discrimination provision of the Immigration and Nationality Act at 8 U.S.C. 1324b, which bars citizenship status and national origin discrimination and certain document abuse in the verification process. The DOJ Immigrant and Employee Rights Section enforces that provision. Uneven verification practices can raise issues similar to those in avoiding discrimination.

Practical steps. Contractors should track award dates, enrollment dates and assignment dates to meet each deadline, keep records of E-Verify cases with Form I-9 files, and push the clause down to qualifying subcontracts.