Information for Federal Contractors on Preventing Discrimination in the use of E-Verify

For information on preventing discrimination in the use of E-Verify, see OSC’s E-Verify Dos and Don’ts. For complete information on who is considered a federal contractor and which federal contractors are required to enroll in E-Verify, please see USCIS’s Frequently Asked Questions: Federal Contractors and E-Verify.

1. I heard that federal regulations went into effect on September 8, 2009 that require federal contractors to use E-Verify, the electronic employment eligibility verification system administered by DHS. Where can I find these regulations?

The regulations can be accessed through the Federal Register, or click here. The regulation’s applicability date was delayed until September 8, 2009, click here.

2. Are those federal contractors required to use E-Verify subject to the anti-discrimination provision of the Immigration and Nationality Act (INA)?

Yes. The anti-discrimination provision of the INA prohibits hiring discrimination and discrimination by employers in the employment eligibility verification process, on the basis of citizenship status or national origin. For more information on the anti-discrimination provision of the INA, click here. (Link - http://www.usdoj.gov/crt/osc/htm/Webtypes2005.php)

3. I am about to enter into a contract with the federal government. Am I required to enroll in E-Verify?

It depends. Employers with government contracts that include an E-Verify clause are required to enroll in E-Verify. The government regulations requiring contractors to use E-Verify state that an E-Verify clause will be inserted into contracts above the currently “simplified acquisition threshold” ($100,000). The regulation also states that the E-Verify clause will not be inserted into prime contracts with performance terms of less than 120 days, contracts for work being performed outside the United States, or for contracts for “Commercially available off-the shelf” (COTS) items. For more information, including information on exceptions to the requirement to run all new hires, see USCIS’s Frequently Asked Questions: Federal Contractors and E-Verify.

4. If I already have a federal contract on September 8, 2009, am I required to enroll in E-Verify?

In general, the E-Verify clause requiring federal contractors to enroll in E-Verify is being inserted into contracts awarded on or after September 8, 2009. However, certain already existing “indefinite-delivery/indefinite-quantity” contracts will be modified on or after September 8, 2009, to include the E-Verify clause. For more information, see USCIS’s, Frequently Asked Questions: Federal Contractors and E-Verify.

5. As a federal contractor, which employees may I run through E-Verify?

If you have a contract with the U.S. Government that includes an E-Verify clause or you are a subcontractor of an contractor whose contract with the Government has an E-Verify clause and your subcontract is for services or construction with a value of more than $3,000, the regulations require you to use E-Verify for:

• All new employees, following completion of the Form I-9; and
• Existing employees who are classified as “employees assigned to the contract.” 

However, the following important exceptions apply to these general requirements:

• An employee should only be verified using E-Verify once (do not verify an employee assigned to a contract who was already verified at the time of hire using E-Verify).
• Employees hired on or before November 6, 1986, may not be verified using E-Verify and may not be required to complete a Form I-9.
• Employees who have an active federal agency HSPD-12 credential or who have an active U.S. Government security clearance for access to confidential, secret, or top secret information do not need to be verified.  
• Institutions of higher learning, state and local governments, governments of federally recognized Indian tribes, and sureties performing under a takeover agreement with a federal agency may choose to only use E-Verify on new and existing employees assigned to the covered federal contract.

For more information, including information on exceptions to the requirement to run all new hires, see USCIS’s Frequently Asked Questions: Federal Contractors and E-Verify.

6. If I am a contractor covered by the regulation, do I need to have my existing employees complete a new Form I-9 in order to verify them using E-Verify?

It depends. Assuming it is permissible to run your existing employees through E-Verify (see question 1), the regulations permit you to use a previously completed Form I-9 for E-Verify purposes if all of the following conditions are met:

· The Form I-9 is complete and includes the employee’s Social Security Number; and

· If the employee presented a List B document to complete the Form I-9, the List B document contains a photo; and

· If the employee presented a Permanent Resident Card (Form I-551) or Employment Authorization Document (Form I-766) to complete the Form I-9, the employer made a copy of the Permanent Resident Card or Employment Authorization Document; and

· The employer has confirmed with the employee that his or her basis for work authorization has not changed (such as a lawful permanent resident having become a U.S. citizen); and

· The employee’s work authorization has not expired.

Otherwise, the regulations require you to complete a new Form I-9 or update the employee’s previously completed Form I-9.

7. If an existing Form I-9 may be used for E-Verify purposes but the person’s Passport or permanent resident card is now expired, may I ask them for new documents?

Please note that if an employee’s Form I-9 meets the above criteria and the employee originally presented a Permanent Resident Card (Form I-551) or U.S. Passport that has since expired to complete his or her Form I-9, the regulations do not permit you to request additional documentation from the employee or to use E-Verify’s “photo screening tool” to compare the photo in E-Verify to the photo in the Form I-551 or U.S. Passport. See the E-Verify MOU, Article II(D)(1)(e) (link - http://www.uscis.gov/files/nativedocuments/MOU.pdf).

8. If a new Form I-9 must be completed, may I request specific documents?

No. You may not demand that your employee produce specific documents, including demanding the same type of document(s) to complete the Form I-9 as he or she originally presented. Rather, your employee may choose which document(s) to present from the Form I-9’s Lists of Acceptable Documents, although if your employee chooses to present a List B identity document, the identity document must contain a photograph for E-Verify purposes. For more information on proper Form I-9 procedures when verifying an existing employee using E-Verify, see the E-Verify MOU, Article II(D)(1)(e) (link - http://www.uscis.gov/files/nativedocuments/MOU.pdf).

These rules are set by the Memorandum of Understanding entered between the employer and the E-verify program (MOU). Failure to follow these rules or using the program improperly may constitute discrimination on the basis of citizenship status or national origin in violation of the anti-discrimination provision of the Immigration and National Act (INA). An employer found to be in violation of the Immigration and National Act (INA) may be liable for back pay and civil penalties.

9. One of my employees was previously run through E-Verify by my company.   Do I need to run this employee through E-Verify again?

No. The E-Verify MOU states that once an employee has been verified through E-Verify an employer should not do it again. See E-Verify MOU Art. II(D)(1). (link - http://www.uscis.gov/files/nativedocuments/MOU.pdf).

10. If I elect to run my entire workforce through E-Verify, can I save time by verifying only those employees who are not U.S. citizens?

No. If you choose to verify your entire existing workforce, you must verify all of your employees using E-Verify, with certain exceptions. See Question 1. You may not run only those you believe are not U.S. citizens. Such a practice would violate federal anti-discrimination law.

11. Where can I get answers to other questions I have about using E-Verify in a non-discriminatory manner?

For more information about employer responsibilities and employee rights, you may contact the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Civil Rights Division, United States Department of Justice, at 1-800-255-7688 or through OSC’s website (link – www.usdoj.gov/crt/osc). OSC enforces the anti-discrimination provision of the Immigration and Nationality Act which prohibits workplace discrimination against authorized workers on the basis of national origin or citizenship status, unfair documentary practices in the employment eligibility verification (Form I-9) process, and retaliation.

12. Where can I get answers to technical questions about E-Verify?

For more general FAR or E-Verify questions you may call E-Verify Customer Support at 1-888-464-4218 or see the E-Verify website, Frequently Asked Questions: Federal Contractors and E-Verify.