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Immigration News: Implementation of Regulation Requiring Federal Contractors to use DHS E-Verify Program to be Delayed Until May 21, 2009

January 30, 2009

By Paul Hastings Professional

The federal government released an advance copy of a regulatory amendment (to be published in the Federal Register) that will further delay, until May 21, 2009, the implementation date of the requirement for federal contractors to enroll in the Department of Homeland Security's E-Verify system. The postponed implementation will provide the new administration additional time to consider carefully whether or not to implement the final regulation in its current form. The final rule requiring federal contractors to verify workers' employment eligibility using E-Verify was published on November 14, 2008, and was supposed to have taken effect on January 15, 2009. See 73 Fed. Reg. 67651 (Nov. 14, 2008). However, on December 23, 2008, the U.S. Chamber of Commerce and several other organizations filed a legal challenge to the regulation. The parties initially reached an agreement with the Government to stay the implementation of the final regulation until February 20, 2009. Notice of this delay was published in the Federal Register on January 14, 2009. See 74 Fed. Reg. 1937 (Jan. 14, 2009).

On January 20, 2009, the new Chief of Staff, Rahm Emanuel, issued a memorandum to all federal agencies directing them to delay publication or implementation of regulations to allow for the review of all pending regulatory actions by the new administration. The additional delay in implementing the rule will provide the Government with the time to conduct that review. As a result, the E-Verify requirement will apply to solicitations issued or contracts entered on or after May 21, 2009. We will continue to monitor the progress of the litigation and will provide additional updates regarding the status of the regulation as they become available.