SUPPLEMENTAL GUIDE FOR FEDERAL CONTRACTORS

3.3 EMPLOYEES WHO ARE EXEMPT FROM E-Verify

Employees exempt from E-Verify are outlined in ‘Figure 6: Employees Exempt from E‑Verify.’ You are not permitted to verify these employees in E-Verify.

In addition, ‘Figure 7: Employees That Are Not Required to be Verified’ outlines the types of employees that are not required to be verified in E-Verify, but you may choose to verify them. If you choose to verify the employees in Figure 7, you should do so for all such employees to ensure that you are not engaging in discrimination in the verification process.

Figure 6: Employees Exempt from E-Verify

Employee: Exempt From E‑Verify? May I Choose To Verify This Employee?

Hired on or before November 6, 1986, and continuing in employment with the same employer

Note: This includes employees hired in the Commonwealth of the Northern Mariana Islands (CNMI) on or before November 27, 2009

Yes

No

Previously confirmed as authorized to work in E-Verify and continuing in employment with the same employer

Yes

No

Figure 7: Employees That Are Not Required to Be Verified

Employees Who: E-Verify Required? May I Choose To Verify This Employee?

Perform support work such as general company administration or indirect or overhead functions and do not perform any substantial duties applicable to the contract. However, you must verify these employees if the employee is a new hire or if you choose to verify your entire workforce.

No

Yes

Have an active confidential, secret or top secret security clearance in accordance with the National Industrial Security Program Operating Manual (NISPOM) or Homeland Security Presidential Directive-12 (HSPD-12) credential; a background check alone is not enough to qualify for this exemption (also exempt if new hire).

Note: Transportation Worker Identification Credential (TWIC) cards do not qualify.

No

Yes

Example: XYZ, Inc. hires Jane Doe, who has a top secret clearance, to work on a federal contract. XYZ still must enroll in E-Verify and use E-Verify for its other employees but is not required to use E-Verify for Jane. XYZ should note on Jane’s Form I-9 that she was exempt from E-Verify because of her security clearance. Even if every employee at XYZ has a security clearance, XYZ still must enroll in E-Verify because the E-Verify federal contractor rule contains no enrollment exception for companies whose employees all have security clearances.

NOTE: Interim clearances are based on the completion of minimum investigation requirements and are granted on a temporary basis, pending the completion of the full investigation requirement for final clearance. Therefore, interim security clearances do not exempt an employee from E-Verify if the employee is a new hire or existing employee assigned to a federal contract that contains the FAR E-Verify clause.

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