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Final Rule Implementing E-Verify - Delayed

January 30, 2009

E-Verify Implementation Update:

On January 30 the federal government agreed to delay implementation of the Federal Acquisition Regulatory Council’s new E-Verify rule until May 21, 2009. The rule, which was scheduled to take effect on January 15, would require certain federal contractors and subcontractors to use E-Verify to verify the work eligibility of new hires and current employees working directly on a federal contract (grants excluded).

The delay is in response to a pending lawsuit challenging the rule. On December 23, 2008, the U.S. Chamber of Commerce and other plaintiffs filed a complaint in the District Court in Maryland seeking declaratory and injunctive orders that the FAR E-Verify Final Rule and the Executive Order upon which it was based exceeded the authority of the executive branch to change key provisions of the Immigration and Nationality Act. The complaint sought expedited judicial relief in light of the FAR E-Verify Final Rule’s January 15 published effective date.

As a result of the lawsuit, implementation of the final rule remains in question. In addition since Obama has not taken a public position on the issue it remains unclear whether or not the new administration will move forward. The official announcement will be published in the Federal Register in the near future.

Resource:


Final Rule Implementing E-Verify Issued
(November 14, 2008)

On November 14, 2008 final rules amending the Federal Acquisition Regulation (FAR) to implement amended Executive Order 12989 (signed on June 6) were published in the Federal Register. The final rules require certain contractors and subcontractors to use the E-Verify system administered by the Department of Homeland Security in partnership with the Social Security Administration. The new rule exempts some institutions of higher education from its full impact. The final rule is effective January 15, 2009 and applies only to solicitations issued and contracts awarded after January 15, 2009. 

Public and independent institutions that are awarded federal contracts will be required to enroll in E-Verify within 30 days of the contract award date and begin employment verification within 90 days of enrollment. The new rule applies to contracts above $100,000 with a performance period longer than 120 days. Under a narrow exemption included in the rule, qualifying institutions will only need to verify the immigration status of employees directly working on the contract and new hires who are assigned to work on a federal contract, rather than all employees across the institution. 

E-Verify is an Internet-based system (formerly the Basic Pilot/Employment Eligibility Verification Program). Participating employers can check the work status of new hires online by comparing information from an employee's I-9 form against SSA and Department of Homeland Security databases.

Resources:
Executive Order Issued Requiring Use of E-Verify  (July 7, 2008)
USCIS Press Release (November 13, 2008)
USCIS Frequently Asked Questions

NACUBO Contact:  Tadu Yimam, policy analyst, advocacy & issues analysis