Mandatory implementation of E-Verify by government contractors – which was originally scheduled for January 15, 2009 and postponed until February 20 – has been postponed again in connection with a lawsuit filed by the Chamber of Commerce of the United States of America and its co-plaintiffs in U.S. District Court seeking declaratory and injunctive relief on several grounds. The government has now agreed that contractors need not comply with E-Verify until at least May 21, 2009.  

In light of the issues raised by the plaintiffs’ complaint, mandatory implementation might be postponed again or even eliminated altogether. Among these issues is the claim that E-Verify cannot be made mandatory through an Executive Order directing the Secretary of Homeland Security to require E-Verify because mandatory implementation is explicitly precluded by language in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), as amended. Plaintiffs sued both the Secretary and the Chairman of the Civilian Agency Acquisition Council – who authorized the issuance of the final E-Verify rule in the FAR – on the basis that both officials violated the applicable provision of IIRIRA and other laws by arranging for mandatory contractor implementation of E-Verify.

The plaintiffs recently filed a motion for summary judgment. If the District Court grants the motion in its entirety and is affirmed on appeal, then mandatory use of E-verify will be eliminated. Presumably, the program would continue on a voluntary basis, pending the Administration’s decision whether to seek a change in the law.

The government’s response to the plaintiff’s motion is anticipated in the near future. This blog will keep readers apprised of significant developments in this litigation saga, the outcome of which will obviously affect the day-to-day employment-related activities of government contractors.

To read more about E-Verify’s applicability to government contractors, click here.