A controversial federal program intended to screen illegal aliens out of jobs and pushed during the waning days of the Bush Administration has been put on hold until at least May 21 by President Barack Obama's administration.
Congress created the program, known as E-Verify, in 1994 as a voluntary means for employers to submit names and Social Security numbers of new employees for matching to the Social Security Administration's database.
But in 2008, President Bush signed an executive order mandating that federal contractors submit to the E-Verify program the names of new hires and existing employees. It applied broadly to primary contractors with contracts over $100,000 and subcontractors with more than $3,000 contracts.
It drew a lawsuit from the U.S Chamber of Commerce, which challenged the mandatory nature of the executive order and ensuing proposed regulations and the requirement to reverify existing workers -- something barred by the legislation, according to Lawrence Lorber of the Washington office of New York's Proskauer Rose, who represents the Chamber.
"The executive order was illegal and violates the statute," said Lorber. The proposed regulations were promulgated Jan. 19, the day before Obama took office, but were not set to take effect until Feb. 20, he said.
The new administration put a 16-day hold on all regulations that were not yet final in order to re-examine them, and Lorber wrote to the Justice Department asking for a 60-day extension in the E-Verify dispute.
The Justice Department filed a request on Jan. 27 to delay the effectiveness of the Bush Administration regulations until May 21, giving the government 120 days to review. Chamber of Commerce of the U.S. v. Napolitano, No. 08-cv-3444AW (D. Md.)
The delay "is a good thing because it is extremely time-consuming and burdensome for contractors to comply," said Dawn Lurie an immigration compliance attorney in the McLean, Va., office of Greenberg Traurig.
"It sounds simple but it is technologically challenging," she said. Employers who were to reverify existing workers would have to go back as far as 1986 to look at work eligibility, or I-9 forms, to determine if workers' status was the same, she said.
The E-Verify program also faces another, broader federal legal challenge over its accuracy. That suit has also been delayed until April 10 to allow the government more time to reply to a summary judgment motion, AFL-CIO v. Napolitano, No. 07-cv-4472CRB (N.D. Calif.).
The California suit challenges the accuracy of "no-match" letters that tell employers a specific employee's information did not match the Social Security database. The suit argues that the database is inaccurate and out of date, producing false no-match letters for large groups of people, such as women who marry or divorce without telling Social Security of the name change. The list may also not be current for immigrants with recently approved citizenship or employment status.
"The Bush Administration did everything in its power to try to implement their second no-match regulation, which was initially enjoined," said Stephen Berzon of Altshuler Berzon in San Francisco and representing the AFL-CIO.
"The DOJ filed a motion to stay…so the new administration has a chance to review the regulation or withdraw it. This is a very positive development," he said.
The bottom line for employers with government contracts is that they are not obligated to run employee data through the E-Verify system.
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