DHS delays e-verify requirement for contractors

DHS’s Citizenship and Immigration Services has delayed enforcing a rule that requires federal contractors to use E-Verify to verify their employees’ eligibility to work legally in the United States. Federal contractors and subcontractors will be required to begin using the E-Verify system starting 20 February 2009. The rule was scheduled to take effect 15 January 2009. 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 Bush on 6 June 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The 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 20 February 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 thirty 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

The U.S. Chamber of Commerce, the Society for Human Resource Management, the Associated Builders and Contractors, the HR Policy Association, and the American Council on International Personnel have filed a lawsuit attempting to block the rule. “The administration cannot use an Executive Order to circumvent Congress’ intent that E-Verify be used only on a voluntary basis,” said Randy Johnson, vice president of Labor, Immigration, and Employee Benefits at the U.S. Chamber. “Although we hope to resolve the litigation in an expeditious manner, the postponement of the rule will help ensure that the court is not unduly rushed to weigh the serious legal questions in this case.”

More than 100,000 employers currently use E-Verify, a free Internet-based system operated by DHS in partnership with the Social Security Administration (SSA) that allows participating employers to verify electronically the employment eligibility of their employees.  During fiscal year 2008, more than 6.6 million employment verification queries were run through the system representing 1 out of every 8 hires made in the United States.