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U.S. District Court Upholds E-Verify System

This week, a Maryland U.S. District Court ruled in favor of the U.S. government in a lawsuit challenging the legality of the E-Verify system (Chamber of Commerce of the United States v. Napolitano). This means that beginning September 8, 2009, federal contractors and subcontractors will be required to use the E-Verify system to ensure their employees are legally authorized to work in the United States. The requirement is designed to stop federal contractors and subcontractors from hiring illegal immigrants.

The E-Verify system is a federal government online database program that allows employers to verify employment eligibility by electronically comparing employee information taken from the Employment Eligibility Verification Form (Form I-9) against the records in the Department of Homeland Security (DHS) and Social Security Administration (SSA) databases. The system, which facilitates compliance with federal immigration laws and is currently voluntary for employers, is jointly operated by the DHS and the SSA and is overseen by the U.S. Citizenship and Immigration Services (USCIS).

The E-Verify program has continued to face opposition from immigrant advocacy groups and business groups that assert the databases used by the E-Verify system are full of errors. The U.S. Chamber of Commerce, one of the business groups strongly opposed to the E-Verify system, initiated the lawsuit against the government in an effort to prevent the program from becoming mandatory for federal contractors and subcontractors.

The U.S. District Court in Maryland held that requiring federal contractors and subcontractors to use E-Verify doesn’t violate federal immigration law. Specifically, the court noted that the rule doesn’t require any person or entity to use the system since organizations and individuals voluntarily decide whether to become government contractors and subcontractors. The court also noted that the President and the U.S. government had the authority to enact the requirement.

Although the Bush administration attempted to make E-Verify mandatory for federal contractors and subcontractors during its final months, the start date for them to begin using E-Verify has been delayed multiple times. When President Barack Obama took office, he ordered additional review of the system. After six months, the Obama administration and the DHS decided to push ahead with the expansion of E-Verify.

After the E-Verify rule takes effect on September 8, employers that are awarded federal contracts that include the Federal Acquisition Regulation (FAR) E-Verify clause will have to verify the employment eligibility of all their employees (including current workers) through E-Verify. However, federal contractors may not use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the FAR E-Verify clause.

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Now that the deadline for federal contractors and subcontractors to use E-Verify is approaching, you can learn more about it by listening to the audio conference “E-Verify Sept. 8 Deadline: New Rules for Federal Contractors and Subcontractors.” For more information, call (800) 274-6774.