22.1802 Policy
Source: FAR 22.1802 on acquisition.gov
Federal contractors must use E-Verify to confirm employment eligibility of workers, with specific requirements, exceptions, and serious consequences for non-compliance.
Overview
FAR 22.1802 establishes the policy requiring federal contractors to comply with U.S. immigration laws and verify the employment eligibility of their workers using the E-Verify system. This section outlines the mandatory use of E-Verify for federal contractors, specifies exceptions, details subcontractor requirements, and provides for waivers and consequences of non-compliance.
Key Rules
- Compliance with Immigration Laws
- Contractors must employ only individuals eligible to work in the U.S. and use E-Verify as an additional verification tool, not a replacement for other requirements.
- E-Verify Enrollment and Use
- Federal contractors must enroll in E-Verify and use it to verify all new hires in the U.S. (with limited exceptions for certain institutions and government entities).
- Verification of Employees Assigned to Contracts
- Contractors must use E-Verify for all employees assigned to the contract, and flow down these requirements to certain subcontractors.
- Optional Broader Verification
- Contractors may choose to verify all existing employees hired after November 6, 1986, instead of only those assigned to the contract, with exceptions for employees with security clearances or HSPD-12 credentials.
- Waivers
- The head of the contracting activity may waive E-Verify requirements in exceptional cases.
- Consequences of MOU Termination
- If DHS or SSA terminates a contractor’s E-Verify MOU, the contractor may be referred for suspension or debarment and is excused from E-Verify obligations during the review period.
Responsibilities
- Contracting Officers: Must include E-Verify requirements in solicitations and contracts as prescribed.
- Contractors: Must enroll in and use E-Verify as required, ensure flow-down to applicable subcontractors, and maintain compliance with all related obligations.
- Agencies: May grant waivers and must refer non-compliant contractors for possible suspension or debarment.
Practical Implications
- This policy ensures federal contractors are hiring only authorized workers and provides a clear process for employment eligibility verification. Non-compliance can result in severe penalties, including suspension or debarment. Contractors must understand the scope of E-Verify requirements, exceptions, and the importance of proper flow-down to subcontractors.
(a) Statutes and Executive orders require employers to abide by the immigration laws of the United States and to employ in the United States only individuals who are eligible to work in the United States. The E-Verify program provides an Internet-based means of verifying employment eligibility of workers employed in the United States, but is not a substitute for any other employment eligibility verification requirements.
(b) Contracting officers shall include in solicitations and contracts, as prescribed at 22.1803, requirements that Federal contractors must-
(1) Enroll as Federal contractors in E-Verify;
(2) Use E-Verify to verify employment eligibility of all new hires working in the United States, except that the contractor may choose to verify only new hires assigned to the contract if the contractor is-
(i) An institution of higher education (as defined at http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title20-section1001(a)&num=0&edition=prelim" target="_blank">20 U.S.C. 1001(a));
(ii) A State or local government or the government of a Federally recognized Indian tribe; or
(iii) A surety performing under a takeover agreement entered into with a Federal agency pursuant to a performance bond;
(3) Use E-Verify to verify employment eligibility of all employees assigned to the contract; and
(4) Include these requirements, as required by the clause at 52.222-54, in subcontracts for-
(i) Services, except for commercial services that are part of the purchase of a COTS item (or an item that would be a COTS item, but for minor modifications), performed by the COTS provider, and are normally provided for that COTS item; and
(ii) Construction.
(c) Contractors may elect to verify employment eligibility of all existing employees working in the United States who were hired after November 6, 1986 (after November 27, 2009, in the Commonwealth of the Northern Mariana Islands) instead of just those employees assigned to the contract. The contractor is not required to verify employment eligibility of-
(1) Employees who hold an active security clearance of confidential, secret, or top secret; or
(2) Employees for whom background investigations have been completed and credentials issued pursuant to Homeland Security Presidential Directive (HSPD)-12.
(d) In exceptional cases, the head of the contracting activity may waive the E-Verify requirement for a contract or subcontract or a class of contracts or subcontracts, either temporarily or for the period of performance. This waiver authority may not be delegated.
(e) DHS and the Social Security Administration (SSA) may terminate a contractor's memorandum of understanding (MOU) and deny access to the E-Verify system in accordance with the terms of the MOU. If DHS or SSA terminates a contractor's MOU, the terminating agency must refer the contractor to a suspending and debarring official for possible suspension or debarment action. During the period between termination of the MOU and a decision by the suspending and debarring official whether to suspend or debar, the contractor is excused from its obligations under paragraph (b) of the clause at 52.222-54. If the contractor is suspended, debarred, or subject to a voluntary exclusion as a result of the MOU termination, the contractor is not eligible to participate in E-Verify during the period of its suspension, debarment, or voluntary exclusion. If the contractor is not suspended, debarred, or subject to a voluntary exclusion, then the contractor must re-enroll in E-Verify.