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

[Editor’s Note: today’s blog is courtesy of Aimee Clark Todd of Troutman Sanders LLP.] 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.

New I-9s Can Mean Double-Trouble

Choosing to verify all existing employees obviously reaches a greater number of employees, and therefore increases your risk of receiving an erroneous non-confirmation from E-Verify, which could result in a wrongful termination of employment.  Similarly, as the company is completing more I-9 forms, the risk of errors and potential discriminatory actions by the company representatives responsible for this process increase.

Do We Have Time for New I-9s?

Companies who elect to verify all existing employees must submit all employee data in E-Verify within 180 days of enrolling in the program or, if already enrolled, within 180 days of notifying E-Verify of its election to verify all existing employees.  Depending on the number of staff who are trained and available to complete I-9 forms and submit data in E-Verify, as well as the number of employees in the company, this could be a very difficult timeline to meet.

New I-9 Forms = New Training

Companies choosing to complete new I-9 forms for all employees have to make sure an ample number of HR staff members are properly trained in I-9 completion and the E-Verify rules to ensure that the new I-9s are both error-free and E-Verify-ready. Depending upon the size of the organization, this could be a massive project, requiring new training sessions and disrupting other HR functions. There will also be a certain amount of pressure to “get it right” this time.

Choosing the Path of Least Resistance

Depending on the culture within your company, some employees could balk at having to submit new documents and complete a new I-9 when the company is not under a strict requirement to do so.  There are even instances of employees refusing to do so.  In such a case, the company is faced with the decision of whether to make an exception for employees that refuse to comply or whether to take disciplinary action or even terminate employment based on refusal to comply with the company’s reasonable request.  Taking disciplinary action or terminating employment could lead to a host of new problems and legal actions against the company.  Whether those actions would have a solid legal basis may be questionable, but they would certainly create new headaches for the company.

An important point in this regard is that the company should develop a policy prior to implementing E-Verify and apply that policy consistently to all employees.

For example, you could create a policy stating you will complete new I-9 forms for all existing employees and that if an employee objects to completing a new form, then the designated company representative will review that employee’s existing I-9 form to determine whether it is compliant with the E-Verify requirements.  If it is not, then it will be mandatory either to update the form or complete a new form and the employee will have to comply. Don’t Forget the Union! If your workforce is unionized, you should consult the bargaining agreement to determine whether it impacts the company’s ability to impose new requirements on employees that would include the company’s election to complete a new I-9 form. It may be advisable to consult with the union representative in advance of implementing a policy to complete new I-9 forms for all existing employees.

Is there an easier way to do this?

With the recent announcement by ICE of its final electronic I-9 rule, it’s also worth considering whether technology can play a role in easing this I-9 burden. Many employers are already considering electronic I-9 software (such as the LawLogix Guardian system) to prevent mistakes on new hire I-9 forms, and some of these same systems can also address the conundrum of existing forms and E-Verify. Using such a system, employers can “migrate” their existing forms to electronic format and separate out those good I-9s (which require no intervention) from those which may need updating for E-Verify. In many situations, this can lead to a much smaller pool of employees who need to be contacted for more information. Moreover, this option can significantly save HR personnel time (and resources) and enable employers to avoid the potential minefield of issues discussed above relating to discrimination, civil liability, and overall employee relations.

Planning is Key

The bottom line when confronting this E-Verify conundrum is a principle that runs throughout I-9 and E-Verify compliance efforts – companies must thoughtfully consider their particular culture and needs, establish clear policies and guidelines, properly train company representatives who will implement the policies, and ensure that the policies are implemented consistently to avoid discriminatory conduct.


[1] Yes, I spent FAR too much time solving the puzzle of the proper plural form of “conundrum.”  As it turns out, just as we often find in the law, there is no single or simple answer.  For those who are curious, a lively starting point ishttp://www.guardian.co.uk/notesandqueries/query/0,5753,-5253,00.html. [2] Note that the requirement to E-Verify “existing employees” only applies to those hired after November 6, 1986, as that is the date on which the I-9 requirements went into effect. [3] The most common reason an employer would choose to E-Verify all existing employees, rather than only existing employees assigned to the contract, is due to the difficulty in determining which employees are considered to be assigned to the contract.