FAR 22.1802—Policy.
Plain-English Summary
FAR 22.1802 states the Government’s policy on use of E-Verify in federal contracting and explains when contractors must enroll in E-Verify, when they must use it to verify new hires and employees assigned to a contract, and when those requirements flow down to subcontracts. It also addresses special contractor categories that may limit verification to employees assigned to the contract, the option to verify all existing employees hired after the statutory cutoff date, and the exceptions for employees with certain active security clearances or HSPD-12 credentials. The section further covers the limited waiver authority available to the head of the contracting activity, and the consequences if DHS or SSA terminates a contractor’s E-Verify memorandum of understanding, including referral for suspension or debarment and the contractor’s temporary relief from E-Verify duties during that process. In practice, this section is the policy foundation for the E-Verify clause at FAR 52.222-54 and tells contracting officers when to include the clause and tells contractors how broad their verification obligations are. It matters because E-Verify compliance affects award eligibility, subcontract administration, workforce onboarding, and potential suspension or debarment exposure.
Key Rules
E-Verify is required by policy
Federal contractors must comply with E-Verify requirements when the clause is prescribed for the solicitation or contract. The policy is based on statutes and Executive orders requiring employers to follow U.S. immigration laws and hire only individuals eligible to work in the United States.
E-Verify is not a substitute
The program is an electronic verification tool, but it does not replace other employment eligibility verification obligations. Contractors still must complete all other required hiring and employment verification steps, including those under immigration and employment eligibility laws.
Contracting officers must flow requirements in
Contracting officers must include the E-Verify requirements in solicitations and contracts as directed by FAR 22.1803. This is what makes the contractor’s E-Verify obligations contractually enforceable through the clause at FAR 52.222-54.
Verify new hires and assigned employees
Contractors generally must enroll in E-Verify and use it to verify all new hires working in the United States, as well as all employees assigned to the contract. This creates both a company-wide onboarding obligation and a contract-specific workforce obligation.
Limited exception for certain entities
An institution of higher education, a State or local government, a tribal government, or a surety performing under a takeover agreement may choose to verify only new hires assigned to the contract instead of all new hires. This is a narrow exception and does not eliminate the need to verify employees assigned to the contract.
Optional verification of all existing employees
Contractors may elect to verify all existing employees working in the United States who were hired after November 6, 1986, or after November 27, 2009 in the Commonwealth of the Northern Mariana Islands. This is optional and broader than the minimum contract-assigned employee requirement.
Security clearance and HSPD-12 exceptions
The contractor does not have to verify employees who hold an active confidential, secret, or top secret clearance, or employees whose background investigations and HSPD-12 credentials have already been completed and issued. These exceptions reduce duplicate verification for already vetted personnel.
Waivers are rare and limited
In exceptional cases, the head of the contracting activity may waive the E-Verify requirement for a contract, subcontract, or class of contracts or subcontracts, either temporarily or for the period of performance. This waiver authority cannot be delegated.
MOU termination has consequences
If DHS or SSA terminates the contractor’s E-Verify memorandum of understanding, the agency must refer the contractor for possible suspension or debarment. The contractor is excused from E-Verify obligations while that referral is pending, but if not suspended or debarred it must re-enroll in E-Verify.
Responsibilities
Contracting Officer
Include the E-Verify requirements in solicitations and contracts when prescribed by FAR 22.1803, and ensure the clause at FAR 52.222-54 is used to flow the requirements to covered subcontracts.
Contractor
Enroll as a Federal contractor in E-Verify, verify employment eligibility of required new hires and employees assigned to the contract, decide whether to use the optional broader verification of existing employees, and comply with any subcontract flowdown obligations.
Contractor
Maintain awareness of the limited exceptions for employees with active security clearances or completed HSPD-12 background investigations and credentials, and avoid unnecessary duplicate verification for those individuals.
Contractor
If DHS or SSA terminates the contractor’s MOU, stop using E-Verify as directed, respond to any suspension or debarment process, and re-enroll if the contractor remains eligible after the matter is resolved.
Head of the Contracting Activity
Exercise the waiver authority only in exceptional cases and only for the contract, subcontract, or class of contracts or subcontracts at issue; this authority may not be delegated.
DHS and SSA
Administer the E-Verify MOU, and if the contractor’s MOU is terminated, refer the contractor to a suspending and debarring official for possible action in accordance with the MOU terms.
Suspending and Debarring Official
Review the referral after MOU termination and determine whether suspension, debarment, or no exclusion action is appropriate.
Practical Implications
Contractors need to know whether the clause applies before award, because E-Verify enrollment and workforce verification can affect onboarding timing and subcontract planning.
The biggest compliance mistake is assuming E-Verify replaces I-9 or other employment eligibility checks; it does not, and contractors must still complete all required hiring documentation.
Companies with mixed workforces should track which employees are assigned to covered contracts and which categories are exempt, especially for higher education, state/local/tribal entities, and sureties under takeover agreements.
Contractors should watch for the special exceptions for cleared personnel and HSPD-12 credentialed employees to avoid unnecessary queries and inconsistent records.
If the MOU is terminated, the contractor should treat that as a serious compliance event with potential suspension or debarment consequences, not just an administrative issue.
Official Regulatory Text
(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 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.