FAQs

1. What is the E-Verify clause?
The rule requires the insertion of the E-Verify clause into applicable federal contracts, committing Government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to any given federal contract.

2. What is the acquisition threshold for this rule?
The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000).

3. Does the rule apply to subcontracts?
The rule only covers subcontractors if a prime contract includes the clause.  For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000.

4. Does the rule extend to contracts outside the United States?
The rule applies only to employees working in the United States, which is currently defined to include the fifty States and the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

5. Does the rule apply to existing indefinite-delivery/indefinite-quantity contracts?
Existing indefinite-delivery/indefinite-quantity contracts should be modified by Contracting Officers on a bilateral basis in accordance with FAR 1.108(d)(3), to include the clause for future orders if the remaining period of performance extends at least six months after the final rule effective date, and the amount of work or number of orders expected under the remaining performance period is substantial.

6. What types of prime contracts are exempt from the rule?
The rule exempts:

  • Contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services;
  • Contracts of less than the simplified acquisition threshold ($100,000);
  • Contracts less than 120 days; and
  • Contracts where all work is performed outside the United States.

 

7. What is considered to be a COTS item?
A COTS item is a commercial item that is sold in substantial quantities in the commercial marketplace and is offered to the government in the same form that it is available in the commercial marketplace, or with minor modifications.

8. Are contracts for agricultural and food products exempt from the rule?
Nearly all food and agricultural products fall within the definition of “commercially available off-the-shelf (COTS)” items.  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 rule.

9. Which employees will need to be verified through the E-Verify system?
New and existing employees assigned to or working on a federal contract.

Employees already verified through E-Verify should not be re-verified. However, an employee’s previous employment authorization through E-Verify from another employer does not satisfy the obligation to use E-Verify once they have hired at the university.

10. What is an “employee assigned to the federal contract”?
The rule defines an “employee assigned to the federal contract” as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify.  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.

11. An employee is working on a contract for a minimal amount of time.   Is he or she subject to E-Verify?
Yes. The rule does not exempt employees based on the intermittent nature of the work or the length of time spent performing the work.

12. An employees was run through E-Verify by a previous employer.   Does the employee need to be run through E-Verify again?
Yes.   Under the rule, federal contractors are required to enter the worker’s identity and employment eligibility information into the E-Verify system following completion of the Form I-9 at the time of hire. 

13. An employees was previously run through E-Verify by the university.   Does the employee need to be run through E-Verify again?
No. Once an employee has been run through E-Verify they should not be re-verified through E-Verify by the same employer.

14. What employees are not considered to be directly performing work under a contract and therefore excluded?
Those employees who normally perform support work, such as indirect or overhead functions, and do not perform any substantial duties applicable to the contract, would be excluded.

15. An employee has been previously confirmed as work authorized through E-Verify but is moving to another contract.   Does he/she need to run through E-Verify again?
No.  Once an employee has been run through E-Verify and employment authorization has been confirmed, the employee should not be reverified through E-Verify again by the same employer.

16. Are there any exceptions to verify employees with certain credentials and security clearances?
Yes.  The federal contractor is not required to perform employment verification using E-Verify for any employee who has been granted and holds an active federal agency HSPD-12 compliant credential or a U.S. Government security clearance for access to confidential, secret, or top secret information in accordance with the National Industrial Security Program Operating Manual.  The university still must complete the Form I-9 at the time of hire for such employees.

17. Can my subcontractor verify under my MOU?
No.  Each employer must enter into its own MOU with DHS and SSA.

18. Is the employee required to provide his or her SSN on the Form I-9? 
Yes. The employee must provide his or her SSN to the university if the employee has one. If the employee has applied for and is waiting to receive an SSN, the university should make a notation on their Form I-9 and proceed with E-Verify upon receipt of the SSN.

19. May E-Verify be used prior to making a job offer to a job applicant?
No.  All users, including federal contractors, are prohibited from using E-Verify prior to a job offer and acceptance by the applicant.  Should the university use E-Verify procedures for any purpose other than as authorized by the MOU, the university may be subject to appropriate legal action and termination of its access to the E-Verify systems.

20. Does participation in E-Verify provide safe harbor from work site enforcement?
No.  However, using E-Verify creates a rebuttable presumption that the university has not knowingly hired an unauthorized alien.  Participation in the program does not provide a “safe harbor” from worksite enforcement, however.