In a press release issued this week, the Department of Homeland Security (DHS) restated its continued commitment to its pending rule requiring federal contractors to enroll in E-Verify. However, in the same statement, the DHS announced that it would rescind its long embattled No-Match Rule, which was blocked by court order in 2008, and held in abeyance pending further administrative review by the Obama Administration earlier this year.

As reported earlier, the federal contractor E-Verify rule has itself been challenged by federal lawsuit. However, the Obama Administration appears committed to defending the program's legality, and is on target to attempt enforcing full implementation of the rule to federal solicitations and contractors as of September 8, 2009.

DHS will soon publish a regulation rescinding the so-called No-Match Rule, which was blocked by court order shortly after issuance in 2007. As we have described earlier, the No-Match Rule would have required that, within a maximum of 93 days after receipt of an SSA or DHS notification, employers take steps that involve checking their own records, requesting impacted employees to confirm employment records, and ultimately repeating the I-9 employment eligibility verification process to resolve discrepancies. If an employee's identity and work authorization could not be verified using these procedures, the employer would have been required to terminate the individual's employment, or risk a finding that the employer knowingly hired or continued to employ an unauthorized worker in violation of law. These procedures did not safeguard against liability when an employer had actual knowledge that an employee was not authorized to work.

In abandoning the No-Match Rule, the DHS stated its believe that "E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment." The U.S. Senate has recently responded to this news by voting to pass a bill that would codify the No-Match Rule into law as a matter of statute. Time will tell if we do not in fact see a return to the No-Match Rule via congressional statute, rather than regulatory action. We will provide further updates on the lawsuit challenging the federal contractor E-Verify rule, as implementation is attempted this September, and as the "No-Match Bill" makes its way through Congress.

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