Federal contractors will be required to participate in the government's E-Verify program beginning September 8, 2009, unless The United States District Court for the District of Maryland, Southern Division, grants an injunction. This new E-Verify requirement is based on a Federal Acquisition Regulation (FAR) rule (FAR Case 2007–013) implementing Executive Order 12989, as amended and signed by former President George W. Bush in June 2008. In July 2009, the current administration issued a statement supporting the eVerify requirement as a step forward in strengthening employment eligibility verification.

Currently, all employers are required to complete and retain a Form I-9, Employment Eligibility Verification, for all new hires. E-Verify is a web-based system that allows employers to go a step further in verifying work authorization by checking the information provided by employees against Department of Homeland Security and Social Security Administration databases. If an employee's name and Social Security number do not match, then an employer must terminate the employee or risk noncompliance penalties for knowingly employing unauthorized workers. E-Verify is generally a voluntary program.

Upon implementation of the final rule, federal contractors will be required to use E-Verify on all new hires and on all existing employees directly performing work under federal contracts. The new requirement that federal contractors use E-Verify to check work authorization for existing employees is a departure from existing practice, as currently, employers who voluntarily participate in the E-Verify program may only use the system to check work authorization for new hires.

The final rule will apply to prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000). Solicitations issued and contracts awarded after September 8, 2009, will contain a FAR E-Verify clause requiring use of E-Verify. In addition, certain contracts in place prior to the implementation of the final rule will be modified to include the E-Verify clause. Exemptions include federal contracts that relate only to commercially available off-the-shelf items. Federal contractors will be required to enroll in the E-Verify program within 30 days of the contract award date and will then have 90 days from the date of enrollment to verify existing employees assigned to federal contracts and begin verifying new hires. Federal contractors will also have the option of verifying their entire U.S. workforce.

The final rule is subject to a challenge in The United States District Court for the District of Maryland, Southern Division, and implementation of the rule has been delayed four times thus far. On August 25, 2009, The United States District Court for the District of Maryland, Southern Division, upheld the mandate for federal contractors to use E-Verify. On September 1, 2009, the plaintiffs submitted an emergency motion for an injunction pending appeal. The district court has not ruled on the motion for an injunction. Absent action from the district court, the mandate is scheduled to become effective on September 8, 2009. Questions concerning implementation by Department of Homeland Security, certain exemptions and limitations to the rule and other E-Verify matters may be directed to Jacquelyn Maroney.

This article was prepared by Jacquelyn P. Maroney from Fulbright's Immigration Practice Group. Should you have any questions concerning the above or any other employment-based immigration matter, please do not hesitate to contact Cindy Kang, Partner and Head of the Immigration and Nationality Practice Group (214 855 7499 or ckang@fulbright.com); Jacquelyn P. Maroney (512 536 2420 or jmaroney@fulbright.com); Brenda J. Oliver (202 662 4717 or boliver@fulbright.com) or Benjamin J. Schatz.