August 31, 2009
Previously published on January 16, 2009
New federal regulations that require federal contractors to use the E-Verify System were scheduled to go into effect on January 15, 2009, but have now have been placed on hold until February 20, 2009 due to a lawsuit challenging the regulations.
E-Verify is an Internet-based system operated by the U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA). As its name suggests, this system verifies whether an individual is eligible to work in the United States. Once a voluntary program, the new regulations require the use of E-Verify for federal contractors with only limited exceptions. On December 23, 2008, the U.S. Chamber of Commerce and several non-profit co-plaintiffs filed suit against the government in federal District Court in Maryland. The complaint in the lawsuit alleges that the new regulation directly conflict with the intent of Congress that E-Verify be voluntary and affect only new hires. The complaint also recounts the burdens that the new regulations would place on employers, including administrative costs in determining which employees must be verified through E-Verify as well as increased legal costs to defend against employees bringing discrimination lawsuits related to the use of E-Verify.
Earlier this month, the government and the plaintiffs agreed to postpone the effective date of the final E-Verify regulations to February 20, 2009, and that court has approved that agreement. The postponement is to allow the parties to file cross motions for summary judgment as to the legality of regulations and to allow the court to issue a final ruling in that regard. It is unclear, moreover, whether the new administration will rescind the executive order on which the regulations are based even if the regulations are upheld.
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