Bush Administration Agrees to Delay E-Verify Mandate for Federal Contractors, Subcontractors
The Bush Administration has agreed to delay until February 20, 2009, implementation of the amendment to its Federal Acquisition Rule (FAR) requiring that certain federal contractors and subcontractors use the federal government's E-Verify program, announced the U.S. Chamber of Commerce. The rule was scheduled to take effect on January 15, 2009. Media reports indicate that the federal government will post an announcement about the delay in the Federal Register as early as next week.
“Postponing mandatory E-Verify use by federal contractors until February will give the new Administration an opportunity to re-evaluate the efficacy of the policy,” said Robin Conrad, executive vice president of the National Chamber Litigation Center, the Chamber's public policy law firm. “We hope the incoming Administration recognizes that the last thing American businesses need during these difficult economic times is more bureaucracy and higher compliance costs.” Will the Obama Administration, after reviewing the amendments made to the Executive Order, decide to rescind it? Only time will tell.
E-Verify, administered by the Department of Homeland Security's (DHS) Citizenship and Immigration Services (USCIS) bureau in partnership with the Social Security Administration, is a voluntary, web-based program that allows employers to verify that their employees are authorized to work in the United States.
On June 6, 2008, President George W. Bush amended Executive Order (EO) 12989 (as amended) in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of all persons hired during the contract term and for all persons performing work within the United States on the federal contract. The EO further instructed federal agencies not to do business with federal contractors who “knowingly employ unauthorized alien workers.” While the EO did not specifically address whether subcontractors would also be required to enroll in E-Verify, it provided DHS with the authority to make whatever “rules, regulations, or orders” necessary to implement the EO. Further, it was not clear, according to the EO, when the new requirements on federal contractors would take effect.
At a June 9, 2008, press conference, Homeland Security Secretary Michael Chertoff designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use. Three days later a proposed rulemaking implementing the EO was published in the Federal Register. The proposed rule sought to amend the FAR to require that certain federal contracts contain a clause requiring that contractors and subcontractors enroll in E-Verify to verify the employment eligibility of all newly hired employees and as well as all current employees assigned by the contractor to perform work in the United States under those contracts. The FAR is the principal set of rules in the Federal Acquisition Regulations System, which governs the “acquisition process,” through which the federal government purchases goods and services.
In a final rule published in the November 14, 2008, Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the FAR to require that certain federal contractors and subcontractors use the federal government's E-Verify program to verify that all new hires and existing employees directly performing work under federal contracts must be authorized to work in the United States. Specifically, the final rule inserts a clause into prime federal contracts with a period of performance longer than 120 days and a value above $100,000 requiring the use of E-Verify. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. The final rule takes effect January 15, 2009.
However, on December 23, 2008, a coalition of business groups, led by the U.S. Chamber of Commerce's National Chamber Litigation Center, filed suit challenging the legality of an Executive Order and related federal procurement regulations (Chamber of Commerce v Chertoff, DMd, No 8:08-cv-03444-AW). The other plaintiffs in the suit are the Associated Builders and Contractors, Inc, the Society for Human Resources Management, the American Council on International Personnel and the HR Policy Association. The lawsuit names Homeland Security Secretary Michael Chertoff, Chairman of the Civilian Agency Acquisition Council Albert A. Matera and the United States as defendants. The complaint can be found at: http://www.uschamber.com/assets/nclc/chamber_v_chertoff.pdf. It is expected that during the next 36 days the federal government will answer the complaint and the parties will set and file their briefs on the issues. According to the Chamber's complaint, the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), which created the E-Verify program by Congress, states that "the Secretary of Homeland Security may not require any person or other entity to participate in the pilot program." The Act, which created the program, clarified that the program is voluntary, not mandatory. Therefore, pleads the complaint, the requirements imposed by the EO and final rule are “illegal and must be set aside” because they violate IIRIRA's express prohibition against requiring forced participation in the program. The complaint also alleges, among other things, that requiring reverification of existing employees also exceeds the IIRIRA's mandate. E-Verify is voluntary for private employers. Approximately 92,000 employers are participating in the program.
“The Administration cannot use an Executive Order to circumvent Congress' intent that E-Verify be used only on a voluntary basis,” said Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the U.S. Chamber. “Although we hope to resolve the litigation in an expeditious manner, the postponement of the rule will help ensure that the court is not unduly rushed to weigh the serious legal questions in this case.”
Reprinted with permission. © CCH
(Submitted 1/13/2009)
<p>Bush Administration Agrees to Delay E Verify Mandate for Federal Contractors, Subcontractors  The Bush Administration has agreed to delay until February 20, 2009, implementation of the amendment to its Federal Acquisition Rule (FAR) requiring that certain federal contractors and subcontractors</p>
Bush Administration Agrees to Delay E-Verify Mandate for Federal Contractors, Subcontractors
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