Facing legal pressure from the U.S. Chamber of Commerce and other trade groups, the U.S. government has delayed by at least a month a federal mandate calling for federal contractors and subcontractors to use an Internet-based electronic verification system to confirm that prospective employees are legally eligible to work.
Known as E-Verify, the free program is jointly operated by the U.S. Citizenship and Immigration Services in partnership with the Social Security Administration. The original implementation date was set for Jan. 15, but after the Chamber of Commerce filed its lawsuit, the USCIS bumped the date to Feb. 20.
"There is still litigation against the rule, and the purpose of the delay is to give them a chance to argue their case," a USCIS spokesman told eWEEK.
The Chamber's lawsuit challenges the government's use of a presidential executive order coupled with a federal procurement law to make E-Verify mandatory for federal contractors with projects exceeding $100,000 and for subcontractors with projects exceeding $3,000. The Chamber also challenged expanding E-Verify to require the reauthorization of existing workers.
Joining the Chamber in the lawsuit are the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel and the HR Policy Association.
"This massive expansion of E-Verify is not only bad policy, it's unlawful," Robin Conrad, executive vice president of the National Chamber Litigation Center, said in a statement. "The administration can't use an executive order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to reauthorize the existing work force."
The executive order requires companies to electronically verify all new hires and employees assigned to prime contracts of at least $100,000 and 120 days and subcontracts of $3,000.
"The DHS intends to expand E-Verify on an unprecedented scale in a very short timeframe and to impose liability on government contractors who are unable to comply," Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the Chamber of Commerce, said in a Dec. 24 statement. "Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America's businesses."
Employer groups have long complained that E-Verify is too costly and imperfect to require use by federal contractors and subcontractors. The Chamber contends that only Congress, not a federal agency such as Homeland Security, has the legal authority to impose mandatory compliance.
The case, filed in the U.S. District Court for the District of Maryland, is Chamber of Commerce of the United States of America, et al. v. Chertoff, et al., and seeks to declare the executive order null and void.
In response to President Bush's June executive order calling for federal contractors to verify the legal work eligibility of their employees, Department of Homeland Security Secretary Michael Chertoff designated E-Verify as the system of choice. Federal departments and agencies within the executive branch are already enrolling with E-Verify to check the status of all new hires within the federal work force. More than 69,000 employers currently rely on E-Verify to determine whether their new hires are authorized to work in the United States.