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E-Verify FAR rule being postponed

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FAR Council’s Modified E-Verify/Basic Pilot Mandate Suspended
In November of last year, the FAR Council published a final rule mandating a new modified version of the E-Verify/Basic Pilot program on federal contractors and subcontractors. (See 73 Fed. Reg. 67,651 (Nov. 14, 2008).) The modified version of the E-Verify/Basic Pilot program required reverification of the workforce and created some vicarious liability for subcontractors. Three areas that the Chamber successfully fought for during the 110th Congress included opposing vicarious liability for subcontractors, opposing the reverification of the workforce, and supporting a phased in of any mandatory electronic employment verification program. The new rule was scheduled to become effective on January 15, 2009. After listening to its members’ concerns, the Chamber spearheaded a legal challenge to this badly thought-out rule and requested from the government an agreement to suspend application of the rule until we obtain a final decision from the U.S. District Court. Our leading legal argument is that the Administration exceeded its authority by attempting to use the procurement process to mandate a program that Congress explicitly made voluntary. (See Chamber of Commerce of the United States of America, et al. v. Michael Chertoff, et al., Civil Action No. AW-08-3444 (D. Md.).) Allowing the use of the procurement process in this manner would set a hazardous precedent expanding way beyond the immigration law arena. Yesterday, the litigants reached an accord where the government agreed to suspend applicability of the rule until February 20, 2009. Thus, solicitations that occur prior to February 20, 2009, would not contain the contract clauses that the rule would impose. An announcement of the suspension should appear in the Federal Register early next week. In the meantime, the Plaintiffs will soon be filing a Motion for Summary Judgment. The Chamber wants to acknowledge and thank its friends and partners in the business community that joined in this fight, particularly the Society for Human Resource Management, the Associated Builders and Contractors, the HR Policy Association, and the American Council on International Personnel. January 9, 2009

Randel K. Johnson Vice President Labor, Immigration & Employee Benefits

Angelo I. Amador Director Immigration Policy


				
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