SUPPLEMENTAL GUIDE FOR FEDERAL CONTRACTORS

6.3 INDEPENDENT CONTRACTORS AND SELF-EMPLOYED INDIVIDUALS

Form I-9 rules govern whether an individual is considered self-employed with respect to using E-Verify. Generally, self-employed individuals are not required to complete Forms I-9 on themselves; therefore, they are not required to use E-Verify. However, all employers, including sole proprietorships, must complete Form I-9 for each employee they hire. Employers will need to confirm the employment eligibility in E‑Verify of each employee working under a federal contract that includes the Federal Acquisition Regulation (FAR) E-Verify clause. 

Employers are not required to complete Forms I-9 and use E-Verify for their independent contractors.  The Form I-9 regulations use common-law understandings of employer-employee relationships to describe who is an independent contractor. However, if the independent contractor is a subcontractor under a federal contract covered by the FAR E-Verify clause, the E-Verify requirement will flow down to the independent contractor, who must use E-Verify to verify its own employees.

Example Acme Corporation enters into a federal contract that contains the FAR E‑Verify clause to construct a federal building and must verify its own employees in E‑Verify. Acme subcontracts with Don Draftsman, a self-employed individual, to provide some technical drawings. Acme also subcontracts with Edwards Engineering to install some equipment. Both subcontracts are for more than $3,500 and are covered by the FAR E-Verify clause. Both companies carry on independent business, perform their work according to their own means and methods and are subject to Acme’s control only as to results.

Acme can not use E-Verify to verify either Don Draftsman’s employment eligibility or the employment eligibility of Edwards Engineering’s employees. However, Acme is responsible under the E-Verify federal contractor rule for ensuring that Edwards Engineering, as Acme’s subcontractor on a covered federal contract, enrolls in E‑Verify and verifies its new hires and its existing employees assigned to the federal subcontract.

While Acme is also responsible for ensuring Don Draftsman’s compliance with the FAR E-Verify clause, as a self-employed individual, Don does not need to complete a Form I-9 on himself or enroll in E-Verify, nor can Acme run Don through E-Verify. Under the employer sanction rules applicable to any employer, Acme cannot use an independent contractor if it knows that the independent contractor is an alien who is not authorized to work in the United States.

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