Thursday, September 17, 2009

Federal Contractor E-Verify Requirement Goes Forward

by Charles M. Miller, co-author of Immigration Law in the Workplace

On September 9, 2009 the Fourth Circuit Court of Appeals denied the plaintiffs’ motion for a injunction that would have suspended the FAR E-Verify rule during the pendency of the appeal. Five days earlier the District Court in Maryland had denied a similar emergency motion.

On December 23, 2008, the United States Chamber of Commerce and other plaintiffs filed a complaint in the District Court in Maryland seeking declaratory and injunctive orders that the FAR E-Verify Final Rule and the Executive Order upon which it was based exceeded the executive branches’ authority to change key provisions of the Immigration and Nationality Act. Chamber of Commerce of the United States of America, et al. v. Chertoff, et al.,08-cv-03444-AW (D.C. M.D. 2008).The District Court in Maryland ruled in favor of the Federal Government defendants, resulting in the appeal to the Fourth Circuit Court of Appeals.

The final rule requires the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract, a requirement which began September 8, 2009. The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000). It covers subcontractors if the prime contract includes the clause.

The rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. It exempts those contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services; contracts of less than the simplified acquisition threshold ($100,000); contracts less than 120 days; and contracts where all work is performed outside the United States. Those employees who normally perform support work, such as indirect or overhead functions and do not perform any substantial duties applicable to the contract, are excluded from coverage.

The USCIS, the agency with primary authority over the E-Verify program has issued the E-Verify Supplemental Guidance for Federal Contractors which supplements the E-Verify Users Manual.

Congress will take up the funding and authorization extension of the E-Verify program, which is set to expire September 30, 2009. It is uncertain whether E-Verify will again be authorized for a limited number of years or be authorized as a permanent program.