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You are Here: Home > Blog > Contractor Mandatory E-Verify Use Postponed – Update 3

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Contractor Mandatory E-Verify Use Postponed – Update 3

Wednesday, June 3rd, 2009

According to sources, the federal government has again postponed the effective date of the final rule that requires federal contractors and sub-contractors to use the E-Verify System, to verify the employment eligibility of their workers.

In June 2008, President Bush signed an Executive Order requiring certain federal contractors and sub-contractors to use the E-Verify System. The final rule (Federal Acquisition Regulation or FAR) that will enforce President Bush’s Executive Order was initially to become effective on January 15, 2009.

However, at the request of the U.S. Chamber of Commerce in early January, the federal government agreed to delay the effective date of the final rule until February 20, 2009. Since then the federal government has thrice again postponed the effective date, which is now September 8, 2009. The previous effective date was June 30, 2009.

Update: The Federal Register published the new effective date on June 5, 2009.

Under current federal law, participating in E-Verify is voluntary for most employers. Once voluntarily participating, employers may use E-Verify only to verify the employment eligibility of new-hires; they may not use the System to verify the employment eligibility of existing employees.

Regardless, the Executive Order and its initial final rule force federal contractors with government projects over $100,000 and sub-contractors with government projects over $3,000, to use the E-Verify System to verify the employment eligibility of both new-hires and existing employees who work on federal contracts.

Subsequently, the U.S. Chamber of Commerce and business groups filed a lawsuit, Chamber of Commerce of the United States of America, et al. v. Janet Napolitano, et al., challenging President Bush’s authority to circumvent the law through an Executive Order.

The federal government has delayed the effective date for the final rule four times now, to give the U.S. District Court more time to consider the legal issues while allowing President Obama and his new administration to take more time to re-evaluate the final rule.

Update: The U.S. District Court dismissed the lawsuit on August 25, 2009. As a result, the effective date of September 8, 2009 still stands, unless again delayed by a legal action.

Update: So far, as of March 9, 2010, all legal challenges against the requirements for federal and state government contractors to use E-Verify have failed, according to the law firm of Baker, Donelson, Bearman, Caldwell, & Berkowitz, PC.

For more information, see Frequently Asked Questions: Federal Contractors and E-Verify published by U.S. Citizenship and Immigration Services (USCIS). Consult an attorney for legal advice regarding E-Verify.

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