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DHS Delays Effective Date of E-Verify Mandate for Federal Contractors

The Department of Homeland Security has delayed from January 15 to February 20, 2009, the effective date of the amendments to the Federal Acquisitions Regulations requiring a very large number of federal contractors to participate in the E-Verify Program. Spencer Fane previously reported on these new Federal Contractor E-Verify Regulations. Click here to view the original report.   As mentioned at the end of that report, several heavyweight employer associations filed suit in federal court in the District of Maryland to enjoin the new mandate from taking effect.  As a result of the filing of that lawsuit, we understand that DHS has agreed to suspend the effective date for the regulations until February 20, the parties to the lawsuit will file all briefs concerning plaintiffs’ motion for summary judgment by February 11, the court will attempt to rule on the summary judgment motion by February 20, and if the court fails to do so by that date, plaintiffs will seek temporary or preliminary injunctive relief by that date. As a practical matter, this suspension of the effective date until February 20 also permits the incoming administration of President-Elect Obama to influence the course of the new regulations. For example, once in office, President Obama could countermand the June 2008 Executive Order that prompted the new regulations, he could allow the new regulations to go forward and permit the courts to rule on the legal issues, or he could modify the regulations to address some of the particularly troublesome issues identified in the lawsuit. At the very least, federal contractors now will have an additional month to prepare for participation in the E-Verify Program. This preparation can include identification of potentially covered ongoing federal contracts, a process for identifying future covered federal contracts, and development of a procedure and potential staffing for conducting E-Verify checks as part of the hiring process for all new hires and for all employees assigned to a covered federal contract. Of course, some federal contractors may decide to participate in E-Verify for new hires on a voluntary basis or as the result of state requirements that may be applicable. It is expected that most federal contractors who have a choice, will take a “wait-and-see” approach to E-Verify participation.Should you have any questions on E-Verify, the federal contractor regulations or related state issues, please contact Dave Wing or anyone in the Spencer Fane Labor and Employment Law Practice Group.