Judge allows E-Verify rule to go into effect

After months of delay, new rules are in effect requiring contractors to certify the employment eligibility of their workers using the Homeland Security Department’s E-Verify system. The U.S. District Court for Maryland on Friday denied an injunction for another delay to five industry groups that are appealing the court’s earlier decision to allow implementation of the rule to go forward.

Federal Times’s Elise Castelli writes the plaintiffs — the U.S. Chamber of Commerce, Associated Builders and Contractors, the Society for Human Resource Management, the American Council on International Personnel, and the HR Policy Association — argued that the rule forces contractors to pay for screening new and existing employees in the E-Verify system without assurance the mandate is legal, according to their court motion filed 1 September.

Judge Alexander Williams denied the delay, writing that it would benefit the plaintiffs’ private interests more than public ones. “While the court understands that some harm and inconvenience always accompanies changes … plaintiffs have failed to show they are likely to suffer irreparable harm,” Williams wrote. “Contractors can avoid contracting with the government if they do not want to use E-Verify for whatever reason.”

Further, the government, not the contractors, will bear most of the implementation costs, Williams said. The final E-Verify rule, published in the Federal Register on 14 November, estimated the combined cost to government, contractors and subcontractors at $246 million for the first year the rule is in effect and $1.1 billion for the first 10 years.

The rule originally was supposed to go in effect 14 January but was delayed by the industry groups’ lawsuit claiming the rule violates the statute authorizing E-Verify, which prohibits the government from making the system mandatory. Williams ruled 25 August that the rule didn’t violate the law because “the decision to be a government contractor is voluntary.”

Unless the plaintiff’s appeal, filed 31 August in the U.S. Court of Appeals for the 4th Circuit, is successful, contracts worth more than $100,000 awarded 8 September and later will include a clause requiring contractors to use E-Verify to certify the employment eligibility of any current employees who will work under the contract. The rule also requires contractors to use E-Verify to certify the eligibility of all new hires regardless of whether they’ll work on behalf of the government. Existing contracts lasting more than six months can be modified to add the requirement, but only if the contractor agrees.

Homeland Security’s Citizenship and Immigration Services estimates 169,000 contractors with 3.8 million workers will fall under the new requirement. CIS spokesman Bill Wright said last week E-Verify can handle 65 million status checks each year. The system has run about 7.6 million checks since Oct. 1 without a problem, he said.

CIS is not worried about a surge in E-Verify’s use because the requirement will not apply to all contracts overnight. Rather the requirement will roll out with contract awards, preventing simultaneous demands on the system, Wright said.

Some vendors like the system
Vendors already using the system voluntarily or because of state mandates report the system is easy to use and returns results quickly, preventing a contractor from staffing a job with someone ineligible to work.

It takes about five minutes to run a new hire’s I-9 form through E-Verify, said Ezequiel Arvizu, a corporate compliance representative at Sundt Construction, an Arizona firm that has used E-Verify since it was first piloted in 1998. Sundt holds construction and maintenance contracts for military bases in California, Arizona and Texas.

Much of the time is spent entering data from the I-9 employment eligibility form into the computer rather than running the check itself, Arvizu said. Confirmation of the employee’s status usually comes back in seconds. On the rare occasion an employee’s status cannot be confirmed, the employee has eight days to correct the issue with Homeland Security, before E-Verify declares the candidate ineligible to work and the firm is required to terminate employment.

The speedy turnaround means a company can avoid making a bad placement on a job, said Terry Woodley, vice president of Woodley Building Maintenance, a Missouri firm.

Woodley Building Maintenance is not a federal contractor, but is required to use E-Verify as a contractor with the Missouri state government. Before E-Verify, Woodley’s firm hired a third party to verify employee status, which took days. E-Verify, which is free, saves the firm both time and money, Woodley said.

Approximately 97 percent of all cases queried in E-Verify return employment authorization, CIS’ Wright said. The rest result in “tentative non-confirmation” meaning information entered into the system did not match DHS or Social Security Administration records. Of those mismatched cases, only 0.3 percent are successfully contested, leading to employment authorization; the remaining cases were found to be unauthorized to work in the U.S or were uncontested, Wright said.