US: Federal Court Hears Oral Arguments in Federal Contractor E-Verify Challenge
A Federal judge heard oral arguments in a challenge to a rule that would require certain federal contractors to use E-Verify. The judge is expected to rule on the case in about one week. The government has indicated that it will implement the rule on September 8, 2009, though the judge’s ruling could impact that date.
The U.S. District Court for the District of Maryland heard oral arguments in U.S. Chamber of Commerce v. Napolitano, in which a coalition of business groups is suing the government to enjoin implementation of a regulation that would require certain federal contractors and their subcontractors to use E-Verify. Judge Alexander Williams is expected to issue his ruling in the case in approximately one week.
Subject to the court’s ruling, the Department of Homeland Security has announced that it will implement the federal contractor E-Verify rule on September 8, 2009. If the rule is implemented, contractors will have additional time – 90 to 120 days in most instances – to enroll in and commence using E-Verify.
The regulation, which is an amendment to the Federal Acquisition Regulations (FAR), directs government contracting officers to include a clause in certain federal contracts requiring contractors to use the E-Verify program to verify the employment eligibility of all new hires, as well as existing employees who work on the federal contract. The requirement applies to federal contracts with a performance period longer than 120 days and a value over $100,000. Service or construction subcontracts of a covered contract would also be required to include the E-Verify clause, if the value of the subcontract is over $3,000.
As we have reported previously, the U.S. Senate recently approved an amendment to the Fiscal Year 2010 DHS appropriations bill that would codify a federal contractor’s obligation to use E-Verify, but without the aforementioned exemptions and parameters. If the amendment becomes law, it could limit DHS’s ability to implement the federal contractor E-Verify rule in the present form. House and Senate appropriators are scheduled to meet in September to agree on a final legislative package. It is not clear whether the E-Verify amendment will be included in the final version of the bill.
Source: Fragomen
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