Labor & Employment Law

Lawsuit delays E-Verify implementation date

The U.S. Citizenship and Immigration Services' E-Verify system was scheduled to become mandatory on January 15, 2009. The date has been changed to February 20, 2009.

Why the delay? A lawsuit filed December 23, 2008 by the U.S. Chamber of Commerce, the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel, and the HR Policy Association. [Read the full text of the complaint]

Plaintiffs are asking the court to nullify the government's order entirely. The main ground is that Section 402(a) of the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (IIRIRA) expressly prohibits requiring "any person or other entity to participate in a pilot program."

The official government web site contains this bland announcement:

Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services? E-Verify system starting Feb. 20, 2009, to verify their employees? eligibility to legally work in the United States. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors? current employees who perform contract services for the federal government within the United States.

Federal contracts awarded and solicitations issued after Feb. 20, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.

Full post as published by Ross' Employment Law Blog on January 14, 2009 (boomark / email).