We had a question from a technical recruiter who is concerned about using E-Verify for existing employees who are on a covered contract. Here is a summary of the question, which has two parts:

Question: Since the new I-9 (February 2nd and August 7th editions) have different rules for acceptable documents (e.g., expired documents, such as US passport are no longer allowed) , will we have to do a new I-9 for those employees that are on a covered contract? We’re currently using E-Verify for new hires, but how long do we have to be compliant to have all existing employees in the system?

Answer: Once you’ve been awarded a federal contract or subcontract with the E-Verify clause, you will have a choice regarding existing employees: you can use E-Verify for just those that are working on the covered contract OR you can elect to use E-Verify for your entire workforce (if, for example, it’s too burdensome to make the determination of who is on the contract). In either case, you can use a previously completed I-9 form (even one with expired documents) as the basis for the E-Verify query as long as it meets certain requirements that are outlined in the E-Verify MOU. These include: it must be complete (including the SSN); if you accepted a list B document on the old I-9 form, it must be a type which has a photo; if you accepted a green card or EAD, you must have a photo copy of it; and the employee’s work authorization must still be valid. In addition, the MOU indicates that employers must review the old Form I-9 either in person or in communications with the employee to ensure that the employee’s stated basis in section 1 of the Form I-9 for work authorization has not changed.

As for the timing, since you are already using E-Verify, you will have 90 days to initiate verification queries for current employees after you are awarded a covered contract. For those not currently using E-Verify, they get 30 days to enroll and then 90 days from E-Verify enrollment (total of 120 days). Lastly, if you intend to choose the entire workforce option, you have 180 days from election of that option to verify all existing employees hired after November 6, 1986.

Disclaimer: Although our bloggers are legal experts in the field, these answers should not be construed as direct legal advice. Your specific employment situation may involve facts and complications unknown to us. For specific issues and questions regarding I-9 and E-Verify compliance, please contact your immigration or employment counsel.