As reported earlier, DHS had already agreed to postpone the effective date of the rule from January 15, 2009 to February 20, 2009 in order to best accommodate the briefing schedule of the federal court where the rule is currently being challenged. Since then, the new Obama administration has announced a sweeping regulatory review for all preliminary and rules that have not yet become final. Depending upon the outcome of either the federal lawsuit challenging the law, or the Obama administration's review, the E-Verify federal contractor rule itself may not survive in its current form. In fact, the continued existence of the E-Verify program itself cannot be assumed, as its legal authority is set to expire on March 6, 2009. The E-Verify program requires an act of Congress for extension of its funding, and citing ongoing controversies with E-Verify, Congress balked at passing any extension legislation last year.

New pressure is mounting in the new Congress to not only extend E-Verify but expand its scope. On January 28, the House of Representatives passed an economic stimulus bill that contained not only a five-year extension of the E-Verify program, but also a requirement that any companies receiving stimulus funds must first enroll in E-Verify. The Senate's version of the stimulus package does not contain these provisions, and it remains to be seen what legislation affecting or extending E-Verify might come from Congress in 2009.

Jackson & Hertogs is monitoring these developments closely, and will post updates of any news.

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