Regulatory Alert 

E-Verify Federal Contractor Rule
Suspended Until at least February 20th
 
The U.S. Department of Justice (DOJ) has agreed to suspend implementation of a new rule mandating that federal contractors use the Employment Eligibility Verification (E-Verify) system for verification of all new and many existing employees. DOJ's decision came as a result of a legal challenge that was brought by Associated Builders and Contractors (ABC), the U.S. Chamber of Commerce, the Society for Human Resource Management and several other employer associations. The rule had been scheduled to go into effect Jan. 15, 2009, but has now been pushed back to Feb. 20, 2009. It is possible that the Feb. 20 deadline may be extended.   

In December, ABC and its coalition partners challenged the authority of the government to promulgate this regulation and sought an injunction from a federal court. The legal challenge echoed ABC's position in previous comments on the rule, arguing that to require broader use of E-Verify would be illegal and expose contractors to needless liabilities. 

The Civilian Acquisition Council and the Defense Acquisition Regulations Council (Councils) issued a final rule on Employment Eligibility Verification (E-Verify, formerly known as the Basic Pilot Program), which amends the Federal Acquisition Regulation (FAR) to require federal contractors and subcontractors to verify employees’ eligibility to legally work in the United States.  For all contracts awarded after the rule’s effective date of January 15, 2008, federal contractors and subcontractorswill be required to use the E-Verify system for all new hires, as well as for existing personnel directly performing work on federal contracts.  Existing “indefinite-delivery/indefinite-quantity” contracts will also be modified to incorporate the provisions of the rule.

The current governing statutes only allow E-Verify to be used on a voluntary basis for new hires only.  Until those terms are modified by Congress, it is our view that requiring the broader use of E-Verify for contractors is unlawful.  It is for this reason that the Essential Worker Immigration Coalition (EWIC), of which ABC is a key member, is meeting to discuss potential legal challenges to the rule.  In the meantime, ABC is reviewing the provisions and, after our analysis is completed, we will provide additional information explaining the rule's requirements, and guidance on how best to implement. 

In the meantime, a direct link to the text of the final rule has been provided below.  Additionally, I have included links to U.S. Citizenship and Immigration Services’ (USCIS) official press release and Q&A regarding the rule:

Full Text: E-Verify Final Rule

USCIS E-Verify Final Rule Press Release 

USCIS E-Verify Final Rule Q&A