Should an Employer Subject to FAR Federal Contractor E-Verify Its Entire Workforce?

Once an employer is subject to the FAR E-Verify Regulations, it has two decisions to make.

1. Will it only verify employees assigned to the project, or will it verify all employees of the business entity?

2. Will it require all re-verified employees to complete a new I-9, or will it only complete a new I-9 when required to do so?

Verifying the Form I-9 employment eligibility for the entire workforce and using it company-wide going forward will ensure compliance under the FAR E-Verify Regulations.

Then, the employer only needs to make sure that its qualifying subcontractors, flowing from the employer’s prime contracts, comply with the FAR E-Verify regulations when the subcontracts are for services or for construction with a value over $3,000.

E-Verify does allow a federal contractor to change their selection from just employees assigned to contract and new hires to entire workforce.

However, E-Verify does not allow an employer to change from E-Verifying its entire work force to just employees assigned to contract and new hires.

A company may withdraw from E-Verify altogether once the covered federal contract is completed, then re-register with E-Verify with a new “basic” E-Verify account.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits. 

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.
  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws. 

Gerald Goulder is a North Carolina immigration lawyer who practices exclusively immigration law for North Carolina clients and for clients throughout the United States, and the world.  Immigration law is a federal law practice not limited attorneys in a particular state.