The Department of Homeland Security (DHS) has again postponed the effective date of its E-Verify federal contractor rule to June 30, 2009. While a formal notice is yet to be published in the Federal Register, an advance copy of the Federal Register notice was distributed by the American Immigration Lawyers Association (AILA) to its members. The advance notice makes no changes in the proposed regulation other than the proposed effective date of June 30, 2009. According to the notice, the effective date has been pushed out "to permit the new Administration an adequate opportunity to review the rule".

As reported earlier, DHS had previously postponed the effective date of the rule from January 15, 2009 to February 20, 2009, and again to May 21, 2009, due to a lawsuit challenging the rule and a decision by the incoming Obama administration to review certain regulations promulgated under the previous administration. Depending upon the outcome of either the federal lawsuit challenging the law, or the Obama administration's review of the rule, the E-Verify federal contractor rule itself may not survive in its current form.

If implemented as currently written, the Federal contractor regulations would greatly expand the use of E-Verify. The present E-Verify program is expressly limited for the employment verification of new hires. In fact, employers are specifically barred from using E-Verify to "re-verify" the employment authorization or identity documents of existing employees. Under the current version of the rule, federal contractors will be required to use E-Verify to verify initial employment authorization for all new hires. However, employers will also be required to re-verify the employment authorization for all existing employees working under a covered federal contract. Only federal contractors would be required or permitted to re-verify existing employees through E-Verify. Employers who do not contract with the federal government would not be permitted to enter existing employees into the E-Verify database for verification.

While federal contractors are not required to immediately enroll in the E-Verify program, employers potentially subject to this requirement should begin planning for E-Verify, and in particular how to identify employees subject to this new requirement. Care will be required, as employers will need to use E-Verify for all new hires, regardless of whether the hire will work under a specified federal contract. However, only certain existing employees will be subject to the re-verification requirement for E-Verify.

Jackson & Hertogs is monitoring these developments closely, and will post updates of any news.

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