The Department of Homeland Security (DHS) has delayed until February 20 a requirement for government contractors to use the E-Verify system to check the eligibility of their employees to work in the United States. A new rule requiring federal contractors to use E-Verify – a free Web-based system that compares the names and Social Security numbers of newly hired employees against government databases – had been scheduled to go into effect January 15.
The date was pushed back because of a federal lawsuit filed last December 23 by the Society for Human Resource Management (SHRM) and four other business groups. SHRM believes the administration is overreaching its authority by mandating an employment verification program designed to be voluntary, and that only Congress has the authority to make E-Verify mandatory.
But the federal government believes that it is not violating the E-Verify statute because accepting a government contract is a voluntary action, and the new rule is simply a condition of doing business with the government. Outside of federal contractors, E-Verify is voluntary for the rest of the country’s employers, and about 100,000 U.S. businesses use the E-Verify system voluntarily.
So how will this lawsuit end? For now, the U.S. Citizenship and Immigration Services (USCIS) web site states that “Federal contractors and subcontractors will be required to begin using the E-Verify system starting February 20, 2009.” A DHS spokesman said that “the brief pause in implementation” would not change the E-Verify rule, which “remains legally final and binding.”
Meanwhile, the business groups will file a motion for summary judgment on January 14 to ask the court to rule on all or part of the E-Verify case without a full trial. Any additional legal and policy decisions on E-Verify will now be managed by the incoming Obama administration. While President-elect Obama has expressed support for E-Verify in the past, it is not clear what view the new administration will take toward the final E-Verify rule.
Whatever the outcome of this lawsuit, businesses need to stay informed about the E-Verify system. An E-Verify agent, Pre-employ.com offers a FREE service that delivers an easy to use, web-based solution and makes anyone an E-Verify expert. For more information on our E-Verify services, please visit www.Pre-employ.com, email info@pre-employ.com, or call 1-800-300-1821.
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Tags: e-verify, employment eligibility, employment eligibility verification
Employment Eligibility
1/20/2009 1:55:43 PM
With regard to E-Verify, here’s the link to a legal opinion paper from an attorney at Michael Best & Friedrich regarding how E-Verify applies for your responsibility regarding independent contractors and sub-contractors. www.mbopartners.com/.../E-Verify.html Interesting stuff — government contractors who fail to comply with E-Verify may be debarred from doing business with the government, but compliance isn’t exactly simple. If you have misclassified employees as contractors (and therefore not performed E-Verify on them) then you may be out of compliance. But to perform E-Verify on contractors is inappropriate, probably illegal, and can tilt the classification decision (in the event of a misclassification audit) in the direction of making these people look like employees, as you have treated them as employees for purposes of verifying employment eligibility. In conclusion, according to the paper (available full text at that link) your E-Verify compliance is ONLY as good as your independent contractor classification compliance.
Liz
11/7/2009 11:50:03 AM