On January 30, 2009, a Notice was published in the Federal Register that the effective date of the rule requiring federal contractors and subcontractors to use E-Verify has again been delayed to May 21st, 2009. The rule, which was supposed to be in effect earlier this year, requires most federal contractors and subcontractors doing work in the United States to use E-Verify to confirm the employment authorization of employees working in the country. For more information about the rule, go to http://www.cozen.com/cozendocs/outgoing/alerts/2008/labor111708.pdf. This is the second delay that the U.S. Chamber of Commerce has obtained, by agreement, from the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA), the agencies that issued the rule.
This latest delay in the rule's implementation may give the new administration the time it needs to determine the rule's efficacy. The U.S. Chamber of Commerce and many businesses in the nation are hoping that the rule will be rescinded. According to the Chamber in its lawsuit filed in the District Court of Maryland, the rule violates the government's statutory, constitutional and administrative legal authorities. Currently, E-Verify is a voluntary system used by employers to verify employment authorization of new hires. For more information on E-Verify, go to http://www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm. The system has been hotly criticized as prone to errors—false positives and false negatives. In addition, E-verify does not guard against identity theft, nor does the system excuse the employer from completing and maintaining I-9 Employment Verification forms. By mandating E-verify for certain employers— in this case federal contractors—the Chamber argues that the Federal Acquisition Regulation (FAR) oversteps any legal authority.
For the next few months, no mention of E-Verify is required in contracting agreements with the U.S. government. However, federal contractors and subcontractors will need to stay tuned to determine whether plugging into E-Verify will become a reality in the near future.
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