January 8, 2009            Click here for a pdf version of this Alert.

On January 8, 2009, the Department of Justice (DOJ) on behalf of the Federal Regulations Acquisitions (FAR) Councils, agreed to suspend implementation of the E-Verify requirement for Federal Contractors until February 20, 2009. The DOJ’s decision to suspend the E-Verify requirement follows a lawsuit filed on behalf of the U.S. Chamber of Commerce challenging the legality of requiring federal contractors and sub-contractors to use E-Verify. The lawsuit, titled Chamber of Commerce of the United States of America, et al. v. Chertoff, et al., asks the court to declare the rule invalid and permanently enjoin its implementation. The suit challenges the E-Verify requirement on the grounds that Congress, through the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), explicitly prohibited mandating the use of the E-Verify System. According to Robin Conrad, Executive Vice President of the National Chamber Litigation Center (NCLC), “The Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce.”

The “federal government has agreed to a one month delay” in the implementation of the E-Verify requirement for federal contractors, and “notice of that delay will soon be published in the Federal Register,” Russ Knocke, DHS deputy assistant secretary for public affairs, said in a Jan. 9 statement according to The Bureau of National Affairs, Inc. “The brief pause in implementation does not change the E-Verify FAR Rule, which will remain legally final and binding,” Knocke said. “This pause merely allows litigants the opportunity to make their case before a judge, and prevents parties opposed to the rule from additional stalling through litigation,” he said. “We are confident that their arguments will not prevail.”

The brief suspension of the E-Verify requirement will provide Federal Contractors with critical time needed to review their obligations under the rule and develop a better understanding of how the new requirements will effect their businesses. For an overview of the rule please see the GT Alert New Immigration Requirements for Federal Contractors. What most employers do not realize is that the implementation of this regulation forces government contractors, and their subs who are subject to the rule, to review I-9 Forms that date back to 1986. Employers will then need to make substantive updates and changes to the form. In many cases, an entirely new I-9 will need to be completed. Such a process is tedious and time consuming. GT is currently preparing individualized strategies and guidance for employers based on their specific needs.

If you have questions about this regulation, would like a more detailed analysis of how the requirements will effect your business, or for information on one of GT’s upcoming compliance webinars on the topic, please contact Dawn Lurie at luried@gtlaw.com or 703.903.7527 or your GT relationship attorney.