The new law requiring federal contractors to use E-Verify is expected to go into effect September 8, 2009, after multiple postponements caused by a lawsuit. Be aware that federal contractors may not use E-Verify to verify the work authorization of current employees until after the effective date, and the government may not include the E-Verify requirement in contracts or solicitation before then.

As our November 14, 2008 alert explained, the pending Federal Acquisition Regulations require federal contractors with a contract of $100,000 or more, and subcontractors with projects of $3,000 or more, to use E-Verify to confirm work authorization for all current and new employees working on a federal contract. They also require that a company with covered federal contracts use E-Verify to confirm the work authorization of all new employees hired by a company after it is awarded a federal contract, whether or not the employees will work on the federal contract. Recently, Department of Homeland Security Secretary Janet Napolitano announced the administration’s support of the Federal Acquisition Regulations, which enhance the employment eligibility verification requirements for federal contractors.

Plaintiffs in Chamber of Commerce of the United States of America, et al. v. Chertoff, et al. are seeking to have the federal contractor E-Verify regulations declared invalid. This lawsuit has resulted in the multiple postponements of the implementation of the regulations. Although the lawsuit is pending, the court has set briefing schedules that will likely result in the issuance of a decision before the scheduled implementation date. It is expected that the Federal Acquisition Regulations will go into effect September 8, 2009, unless the court issues an injunction to prevent implementation. Companies should confirm the status of the lawsuit and implementation of the regulations before using E-Verify for existing employees working on a federal contract.

Copyright © 2009 by Ballard Spahr LLP. (No claim to original U.S. government material.)

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This newsletter is a periodic publication of Ballard Spahr LLP and is intended to alert the recipients to new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and specific legal questions you have.

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