E-VERIFY PROGRAM POSTPONED UNTIL FEBRUARY 20, 2009
The Department of Labor (DOL) has postponed the date that
federal contractors and subcontractors will be required
to use the federal E-Verify Program to verify an employee's
authorization status until February 20, 2009. The DOL postponement
was issued to permit a ruling on the lawsuit recently filed
by the U.S. Chamber of Commerce and several other employment-related
associations. The lawsuit seeks a declaratory judgment that
the Executive Order that President George W. Bush issued
in June 2008, along with the implementing rule, are invalid
and exceed the E-Verify Program's statutory authority.
As we previously reported (June
2008 E-Update; October
2008 E-Update; November
2008 E-Update), the E-Verify Program was created in
1996 by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA). It is an Internet-based alternative
to the I-9 Form verification process and works by verifying
an employee's authorization status by checking records maintained
by the Social Security Administration and the Department
of Homeland Security. Pursuant to the IIRIRA, participation
in E-Verify is voluntary and is to be used with new hires.
On June 6, 2008, however, President Bush signed an Executive
Order mandating that certain employers with federal contracts
utilize the E-Verify Program to confirm the employment eligibility
of their workforce. On November 14, 2008, the Civilian Agency
Acquisition Council and the Defense Acquisition Regulations
Council issued a Final
Rule implementing the Executive Order and mandating
compliance with the rule beginning January 15, 2009. The
Final Rule expands the current E-Verify Program by making
participation mandatory for certain federal contractors
and by mandating the recertification of current employees
who work on the federal contracts. (See our November
2008 E-Update for more information on the specifics
of the Final Rule.)
On December 23, 2008, the U.S. Chamber of Commerce, and
several other business organizations, filed a lawsuit
in the U.S. District Court for the District of Maryland
claiming that President Bush's Executive Order and the implementing
Final Rule are invalid because the underlying statute does
not authorize E-Verify to be a mandatory program and, further,
does not authorize the President to require that the verification
process be applied to current employees. The lawsuit also
complains that President Bush exceeded his authority in
issuing the Executive Order because the Order was legislative
in nature. The lawsuit seeks a declaration that President
Bush's Executive Order and the Final Rule are illegal and
void. Pending a hearing on the merits of the lawsuit, the
DOL agreed to suspend enforcement of the rule until February
20, 2009.
January 14, 2009
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
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