Tackling E-Verify for Federal Contractors: Whether to Complete New I-9 Forms or Update Existing I-9 Forms for Current Employees

By Aimee Clark Todd

Federal contractors subject to the FAR E-Verify Rule have many conundrums[1] to resolve as they determine how to implement this electronic employment eligibility verification system within their companies. In addition to completing E-Verify for new hires, the FAR E-Verify Rule requires that employers submit data for all existing employees[2] assigned to the federal contract and provides employers the option of submitting data for all existing employees in the company.[3]

To complete the E-Verify submission, employers must use data from the employee’s I-9 Form. The E-Verify system was developed based on current I-9 requirements and on the understanding that employers would be submitting data in E-Verify for new hires. Then the FAR E-Verify Rule came along and required certain federal contractors to complete E-Verify not only for new hires, but also for existing employees. Many of the I-9 forms for these existing employees will be older versions lacking data that is needed to process the E-Verify submission. This has thrown a wrench in the workings of E-Verify, creating technical errors, delays in E-Verify confirmation, and even the potential for non-confirmation through E-Verify.

One way employers can avoid this issue is to complete new I-9 forms for all existing employees that it will submit through E-Verify. In particular, the Supplemental Guide notes “you may find this option easier because the process is the same as the process for newly hired employees.” Yet, this resolves a technical E-Verify problem only to raise other procedural and substantive problems for the company. Employers also have the option to update I-9 forms under very specific circumstances identified in the Supplemental Guide. But this creates the additional administrative headache of having to review each I-9 form to determine whether it is acceptable without modification, whether it can be updated and then used for E-Verify submission, or whether a new I-9 form must be completed.

To re I-9 or not to re I-9? That is the question, and unfortunately, there is no “right” answer for everyone. There are, however, several practical considerations and new electronic tools that may persuade employers to opt for reviewing and updating existing I-9 forms rather than completing new I-9 forms for the entire workforce.

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