E-Verify for staffing agencies: who creates the case, what clients can ask, and the federal contractor clause

For a staffing or temp agency, E-Verify follows Form I-9. Whoever is the employer of record and completes the I-9 also creates the E-Verify case, which for workers on the agency's own payroll means the agency, not the client. Once an agency enrolls a hiring site, it must create a case for every new hire at that site, and it cannot skip some workers because a particular client prefers it. Agencies get one staffing-specific choice, the hire date for pool workers, and one staffing-specific complication: when a client holds a federal contract with the E-Verify clause, the agency's workers on that contract may need to be verified under the contractor rules too.

This page covers who does what between agency and client, what a client contract can and cannot require, and how the federal contractor clause reaches agency workers. For which states make E-Verify mandatory, see E-Verify requirements by state.

Who is the employer

USCIS's Handbook says a business does not complete Form I-9 for workers employed by a staffing agency that provides services to it; the agency does. E-Verify's January 2024 reminder to staffing agencies ties the two together: if an enrolled agency must complete the I-9, it must also create the case, and if the relationship is such that the agency is not the hiring employer, it is not responsible for the case. For how the employment relationship is shared more broadly, see joint employer liability for staffing agencies.

No selective verification

E-Verify participation is chosen hiring site by hiring site. Once a site participates, every newly hired employee at that site must be verified; E-Verify's enrollment guidance also says a site that does not participate may not verify anyone. For an agency, three things follow:

• A client's preference does not change the rule. E-Verify says an agency cannot avoid creating a case because a client asked it not to.
• A client's requirement does not let you verify only that client's workers. If a client insists on E-Verify, the agency has to enroll the relevant hiring site and verify every new hire there, not just the ones headed to that client.
• Candidates are never run before hire. E-Verify is not a screening tool. Nobody goes into E-Verify until they have accepted an offer and completed Form I-9.

Agencies with offices in several states often enroll some hiring sites and not others, for example enrolling the branches in states that require it. E-Verify's FAQ on remote workers confirms that an employer that is not a federal contractor may enroll only the hiring sites that will use it. Map which of your sites are enrolled, and make sure recruiters know which rule applies where.

The pool hire date

Agencies often complete paperwork when a worker joins the available pool, weeks before the first assignment. E-Verify's FAQ on this point lets an agency use either the date the new employee is assigned to their first job or the date they accept an offer and are entered into the assignment pool as the first day of employment. That date drives Section 2 and the case. Two conditions: choose one approach and apply it to every I-9 and case, and do not leave the Section 2 date blank while waiting for an assignment.

One case per hire, not per placement

A temp who stays on the agency's payroll between assignments is a continuing employee, not a new hire at each placement. E-Verify does not allow employers to verify existing employees, with one exception: federal contractors whose contract contains the FAR E-Verify clause. So a client who wants every worker "re-run" before starting at its site is asking for something the program does not allow, unless the federal contractor rules below apply. What the agency can give that client is a written confirmation that the worker was verified when hired, without sharing the case details.

The federal contractor clause and agency workers

FAR 52.222-54 requires covered federal contractors to enroll in E-Verify within 30 calendar days of contract award, verify new hires within three business days, and verify existing employees assigned to the contract within 90 calendar days of enrollment or 30 days of assignment, whichever is later. The prime contractor must flow the clause down to subcontracts over $3,500 for services or construction performed in the United States. A staffing agency supplying workers to a federal contractor on a covered contract is often that subcontractor.

E-Verify's FAQ for federal contractors using temp workers says the staffing agency must verify the workers it places in a pool to be referred to an assignment, and that the contractor may alternatively enroll as an E-Verify employer agent to verify the temporary workers itself if it has access to their Form I-9 information. In practice:

1. Ask every client whether the work falls under a federal contract with FAR 52.222-54.
2. If it does and the clause flows down to you, enroll as a federal contractor with the FAR clause, which is the only status that lets you verify existing employees assigned to the contract.
3. Track the 90-day and 30-day deadlines per assigned worker.
4. Keep the contract reference with your E-Verify records so you can show why an existing employee was verified.

When a temp on assignment gets a mismatch

A tentative nonconfirmation is the agency's to handle, privately, with the worker. While it is pending the E-Verify rules bar adverse action, and pulling a worker off an assignment or delaying their start because of the mismatch is the kind of action that rule covers. Do not tell the client the worker "failed E-Verify". See E-Verify tentative nonconfirmation for the notice and timing steps.

What a client contract can reasonably say

• That the agency completes Form I-9 for its employees and, where enrolled, E-Verify for new hires, in line with federal rules.
• That the agency will comply with any state E-Verify law that applies where the workers are located.
• For federal contract work, that the agency accepts the FAR 52.222-54 flow-down and will verify assigned workers on the clause's timeline.
• That the agency will confirm verification in writing on request, without disclosing I-9 documents or case details.

Clauses to push back on: a requirement to run E-Verify on candidates before placement, to re-verify existing employees for a client without the FAR clause, to verify only the client's workers, or to remove a worker whose case is pending.

A checklist for agencies

• Document which entity is the employer for each placement type you offer.
• List every hiring site and whether it participates in E-Verify.
• Pick the pool-date or first-assignment-date approach and write it into your onboarding procedure.
• Run cases only for new hires, by the third business day after the start date you use.
• Screen new client contracts for the FAR clause and for requests E-Verify does not allow.
• Handle mismatches privately and keep the worker on assignment while a case is pending.
• Check state rules where workers are located; see E-Verify requirements by state.