What is E-Verify?
E-Verify is system that electronically verifies the employment eligibility of newly hired employees.
E-Verify is a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA). U.S. Citizenship and Immigration Services (USCIS) oversees the program.
E-Verify works by allowing participating employers to electronically compare employee information taken from the (the paper-based employee eligibility verification form used for all new hires) against more than 425 million records in SSA's database and more than 60 million records in DHS immigration databases.
The U.S. Department of Justice (DOJ) has agreed to suspend implementation of a new rule that mandates that federal contractors must utilize the Employment Eligibility Verification (E-Verify) system for verification of all new and many existing employees.
DOJ’s agreement came as a result of a legal challenge to the new requirements that was brought by Associated Builders and Contractors (ABC), together with 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 January 15, 2009.
As a result of DOJ’s agreement federal contracts awarded prior to February 20, 2009, will not require contractors to use the E-Verify clause. It is possible that the February 20 date 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 (Chamber of Commerce of the United States of America, et al. v. Michael Chertoff, et al., Civil Action No. AW-08-3444 (D. Md.)). The legal challenge echoed ABC’s previous comments on the rule, arguing that to require broader use of E-Verify would be illegal and expose contractors to needless liabilities.
With this agreement, the parties will now file briefs with the court arguing why the rule should or should not be allowed to be implemented. We are hopeful that the court will grant the coalition’s request for an injunction prior to February 20th.
ABC encourages members to consult with counsel on what steps, if any, your organization needs to take with regard to this regulation.
For additional information, please contact Bob Hirsch at Hirsch@abc.org.
: Final Rule
: November 14, 2008
: January 15, 2009 []
: On November 14, 2008, the Civilian Acquisition Council and the Defense Acquisition Regulations Council (FAR Council) issued a final rule on Employment Eligibility Verification (E-Verify), which requires federal contractors and subcontractors to use the federal E-Verify system to confirm the eligibility of their new, as well as many existing employees, to work in the United States.
Federal contractors and subcontractors will be required to use the E-Verify system for all new hires on contracts awarded after the rule’s effective date of January 15, 2009. The rule also applies to 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 new rule is intended to implement Executive Order 12989, which President Bush amended on June 6, 2008, in order to mandate that federal contractors agree to electronically verify the employment eligibility of their employees.
Under the governing statute, employees are only permitted to use E-Verify to validate new hires. Consequently, ABC and many other employer organizations believe the Executive Order and the majority of the new requirements exceed the President’s authority. ABC is reviewing the new requirements and will provide further guidance once completed.
On December 23, 2008, a coalition of employer associations, including ABC, the U.S. Chamber of Commerce and the Society for Human Resource Management, issued a legal challenge to the new regulations, scheduled to go into effect on January 15, 2009. The challenge contends that the Bush executive order—and by extension, the rule itself—exceeded the President's legal authority over the use of the E-Verify program. ABC is concerned about the bad legal precedent that could be set by the government's reliance on an improper executive order to circumvent the controlling statute.
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