Exemptions and Exceptions (FINAL)

Contracts Exempt from the E-Verify Federal Contractor Rule

Employers whose contracts are exempt from the E-Verify federal contractor rule are not required to enroll in E-Verify. A contract is considered exempt if any one of the following applies:

• It is for fewer than 120 days.
• It is valued at or below $150,000.
• All work is performed outside the United States.
• It includes only commercially available off-the-shelf (COTS) items and related services.

An employer may voluntarily enroll in E-Verify at any time, but may not create cases for existing employees unless the employer holds a federal contract that includes the FAR E-Verify clause and is enrolled in E-Verify as a “Federal Contractor with the FAR E-Verify clause.”

Employees Exempt from the E-Verify Federal Contractor Rule

The following employees are exempt from the E-Verify requirement. Employers are not permitted to verify these employees in E-Verify:

• Employees hired on or before November 6, 1986 and continuing in employment with the same employer.
• Employees hired in the Commonwealth of the Northern Mariana Islands (CNMI) on or before November 27, 2009.
• Employees previously confirmed as authorized to work in E-Verify and continuing in employment with the same employer (and do not fall within another exception that would justify re-verification with E-Verify).

Employess Who May Be Exempt from the E-Verify Federal Contractor Rule

Federal contractors are not required to verify the following employees in E-Verify, but may choose to verify them:

• Employees who normally perform support work such as general company administration or indirect or overhead functions and do not perform any substantial duties applicable to the contract. The employer must verify these employees if the employee is a new hire or if the employer chooses to verify its entire workforce.
• Employees who hold an active confidential, secret, or top secret security clearance in accordance with the National Industrial Security Program Operating Manual (NISPOM).
• Employees who have undergone a completed background investigation and who have been issued credentials pursuant to Homeland Security Presidential Directive – 12 (HSPD-12 credential).

Entities That Are Exceptions to the E-Verify Federal Contractor Rule

The E-Verify federal contractor rule generally requires use of E-Verify for all new employees, regardless of whether they are assigned to a federal contract. The following organizations, however, awarded a federal contract that includes the Federal Acquisition Regulation (FAR) E-Verify clause are only required to use E-Verify for new hires and existing non-exempt employees who are working directly under a covered contract:

• State and local governments
• Institutions of higher education (as defined at 20 U.S.C. 1001(a))
• Governments of Federally recognized Indian tribes
• Sureties performing under a takeover agreement entered into with a Federal agency under a performance bond.