Federal contractors should take note of recent developments related to the mandatory implementation of E-Verify. The Department of Homeland Security (DHS) has agreed to delay implementation of the program for federal contractors from January 15, 2009, to February 20, 2009. The Federal Acquisition Regulations were amended last November to require that federal contractors with a contract of $100,000 or more and subcontractors with projects of $3,000 or more use E-Verify to confirm work authorization for all current and new employees working on a federal contract and all new employees hired by a company after it is awarded a federal contract, whether or not the employee will work on the federal contract. These Federal Acquisition Regulations relating to E-Verify were scheduled to go into effect on January 15, 2009. 

On December 23, 2008, the Chamber of Commerce of the United States of America and three other plaintiffs filed a lawsuit challenging the federal contractor E-Verify regulations, seeking to have them declared invalid (Chamber of Commerce of the U.S. v. Chertoff). As part of the lawsuit, DHS has agreed to postpone implementing mandatory E-Verify for federal contractors until February 20, 2009, to allow the parties to make their arguments before the court.

If the Chamber of Commerce prevails in its lawsuit, federal contractors will not be required to comply with the federal contractor E-Verify regulations. Federal contractors should stay apprised of the lawsuit and consult with legal counsel before following the new federal contractor requirements, which would allow an employer with federal contracts to use E-Verify to check the work authorization of current employees. Using E-Verify for current employees is now prohibited.

Additionally, under the federal contractor E-Verify regulations, federal contractors generally have 30 days after being awarded a contract in which to enroll in E-Verify and 90 days after enrollment to complete the E-Verify requirements. This provision means that federal contractors likely will be able to wait until after the outcome of the lawsuit before making decisions regarding E-Verify. All employers should take care to comply with any local or state laws or regulations regarding using E-Verify.


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