On Dec. 23, 2008, a number of national business organizations – including the Society for Human Resources (SHRM), the U.S. Chamber of Commerce, and the American Council on International Personnel (ACIP) – filed suit challenging an executive order and subsequent rule changes implementing the order that require certain federal contractors and subcontractors use E-Verify. See Chamber of Commerce of the United States of America v. Michael Chertoff, No. 8:08-cv-03444-AW (D. Md. Dec. 23, 2008). The lawsuit also alleges that the executive order and new rules improperly apply E-Verify to existing employees as well as to all new hires – even those who are not working on federal contracts. The plaintiffs have asked that the regulations be declared void and that the Department of Homeland Security be enjoined from enforcing them.
E-Verify is the federal government's method of electronically verifying that employees are authorized to work in the United States. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides the statutory basis for it. Significantly, the IIRIRA indicates that the use of electronic verification systems, like E-Verify, should be voluntary, stating employers "may elect" to participate. Nevertheless, at the end of last year, President Bush signed an executive order requiring, with certain narrow exceptions, the use of E-Verify by all federal contractors and many subcontractors. (E-Verify will remain voluntary for private employers not engaged in performing government contracts or covered subcontracts and not in states that have enacted laws requiring the use of E-Verify.)
The effective date of the rule was to be Jan. 15, 2009. In mid-January, however, the parties to the lawsuit agreed to suspend the effective date until Feb. 20, 2009. On Jan. 27, 2009, the parties again agreed to suspend the effective date until May 21, 2009, so President Obama's administration will have an opportunity to review the rule changes. Accordingly, the E-Verify clause will not be included in any contracts awarded or solicitations issued prior to May 21, 2009.
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