Labor & Employment Law

Court approves E-Verify requirement

For some long time the federal government has been working on requiring federal contractors to use E-Verify as a means of ensuring that employees and new hires are authorized to work in the United States.

Yesterday a federal court cleared away one more hurdle.
The govenment's new rule goes into effect September 8, 2009.

The Chamber of Commerce of the United States and others sued the Secretary of DHS claiming that the government's E-Verify rule was illegal.

A federal judge in the District of Maryland has ruled in favor of the government in an order signed August 26.

Chamber of Commerce of the United States v. Napolitano (D. Md. 08/26/2009)

John Fay at E-Verify & I-9 News summarizes the court's major conclusions:

1. While Federal immigration law (IIRIRA) does restrict the Secretary of Homeland Security from requiring any person or entity to use E-Verify, it does not apply to the President of the United States or the FAR Council. Had Congress intended anything else, Congress easily could have drafted this section to apply to the President or other agencies.

2. The E-Verify Federal Contractor Rule does not violated federal immigration law because it does not require any person or entity to use E-Verify. The decision to be a government contractor is voluntary and no one has a right to be a government contractor.

3. The executive order by President Bush was properly authorized since it made findings that show that requiring government contractors to use an electronic employee eligibility system will promote economy and efficiency in procurement. The court also noted that the President has broad discretion in this regard.

4. Nothing in federal immigration law explicitly prohibits the Executive Branch from using E-Verify for current employees. Though there is administrative guidance saying that E-Verify should not be used for that purpose, that guidance does not legally prohibit the President from requiring it. If Congress intended it to be illegal to use E-Verify for current employees, then Congress should have made that clear in the statute.

5. The executive order and final rule are permissible actions pursuant to the Procurement Act, since they do not constitute lawmaking for which the Executive Branch lacks constitutional authority.

6. The Final Rule contains a discussion of the regulatory flexibility analysis conducted by the Council which considered the costs that incorrect results produced by E-Verify would have on small businesses. Therefore, the government has not violated the Regulatory Flexibility Act.

Full post as published by Ross' Employment Law Blog on August 27, 2009 (boomark / email).