The Department of Homeland Security’s (DHS) final rule amending the Federal Acquisition Regulation (FAR) restricting most awards of federal procurement contracts to employers who use E-Verify has been the subject of a lawsuit pending in the US District Court for the District of Maryland (Chamber of Commerce of the United States of America, et al. v. Napolitano) since December 2008. During the course of the litigation, the effective date of the final rule was pushed back several times. On August 25, 2009 the district court granted DHS’ motion for summary judgment, upholding the mandatory E-Verify rule for federal contractors. In response, on August 31 the Chamber of Commerce and other plaintiffs filed an appeal from the order. They also filed an emergency motion on September 1 to stay the implementation of the FAR regulations pending the appeal, and requested that the judge make a ruling prior to September 8, the date the FAR regulations are set to be effective.

It should also be noted that the E-Verify program is still set to "sunset" on September 30, 2009. However, a provision to permanently reauthorize the program and codify the FAR regulation was included in a Senate Homeland Security Appropriations Bill, but this has yet to be enacted by Congress or signed into law by the President.

For background on E-Verify and more specifically, the FAR E-Verify Rule, see our previous Immigration Alerts from July 2009, June 2009, May 2009, February 2009 and December 2008.