The U.S. Chamber of Commerce issued an announcement that the Department of Homeland Security (DHS) has again postponed the effective date of its E-Verify federal contractor rule to September 8, 2009. The postponement was agreed to by the litigants in a lawsuit challenging the E-Verify federal contractor rule. An announcement confirming the postponement will be published in the Federal Register in the next few days. The effective date was delayed to permit the Obama Administration adequate time to review the rule.

As reported earlier, DHS had previously postponed the effective date of the rule several times, most recently to June 30, 2009, due to a lawsuit challenging the rule and a decision by the incoming Obama administration to review certain regulations promulgated under the previous administration. Depending upon the outcome of either the federal lawsuit challenging the law, or the Obama administration's review of the rule, the E-Verify federal contractor rule itself may not survive in its current form.

If implemented as currently written, the Federal contractor regulations would greatly expand the use of E-Verify. The present E-Verify program is expressly limited for the employment verification of new hires. In fact, employers are specifically barred from using E-Verify to "re-verify" the employment authorization or identity documents of existing employees. Under the current version of the rule, federal contractors will be required to use E-Verify to verify initial employment authorization for all new hires. However, employers will also be required to re-verify the employment authorization for all existing employees working under a covered federal contract. Only federal contractors would be required or permitted to re-verify existing employees through E-Verify. Employers who do not contract with the federal government would not be permitted to enter existing employees into the E-Verify database for verification.

While federal contractors are not required to immediately enroll in the E-Verify program, employers potentially subject to this requirement should begin planning for E-Verify, and in particular how to identify employees subject to this new requirement. Care will be required, as employers will need to use E-Verify for all new hires, regardless of whether the hire will work under a specified federal contract. However, only certain existing employees will be subject to the re-verification requirement for E-Verify.

Jackson & Hertogs continues to monitor the status of the E-Verify rule, and will post updates as news becomes available.

© 1999-2012, Jackson & Hertogs - All rights reserved