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Washington Labor & Employment Wire » U.S. Government Delays Implementation of E-Verify

U.S. Government Delays Implementation of E-Verify


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On January 27, 2009, the Department of Defense, General Services Administration, and National Aeronautics and Space Agency once again delayed implementation of the E- Verify regulation, postponing the expected rollout date to May 21, 2009.

E-Verify is an internet-based system administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration, that allows employers to verify employees’ work eligibility. The rule amends the Federal Acquisition Regulation to insert a clause into federal government contracts committing certain contractors to use E-Verify. The postponement stays the requirement for federal contracting officers to include the new employment eligibility verification clause in any solicitation or contract prior to May 21. Notice of the delay was published in the Federal Register on January 30, 2009.

The final rule, arising out of Executive Order 12989 amended by President George W. Bush on June 6, 2008, was originally scheduled to take effect on January 15, 2009. A lawsuit filed on December 23, 2008 by the U.S. Chamber of Commerce and other plaintiffs against Secretary of Homeland Security Michael Chertoff and Civilian Agency Acquisition Council Chairman Albert Matera sought to declare the final rule and executive order invalid. The parties struck a deal in early January agreeing to delay implementation of the regulation until February 20, 2009, to allow the new administration an opportunity to review the rule. Implementation has been further delayed until May 21 to provide the new administration more time to review the rule and continue to improve and enhance the E-Verify system.

The E-Verify system is currently voluntary. If made effective, the regulation will require all federal contractors holding a contract with a performance period over 120 days and a value over $100,000, as well subcontractors providing services or construction with a value above $3,000, to verify the employment eligibility of new hires and re-verify the employment eligibility of employees hired after November 6, 1985. The system has come under criticism for providing erroneous eligibility results that may occur due to changes in name or citizenship status, or simple data-entry errors, among other reasons.