Experts disagree on effect of E-Verify's expiration

A potential legal obstacle may lie ahead for the E-Verify rule shortly after its implementation for federal contractors on Sept. 8.

The rule that requires federal contractors to participate in the Homeland Security Department’s E-Verify employment verification system is expected to go into effect as scheduled on Sept. 8. A federal judge dismissed a lawsuit on Aug. 26 that challenged the legality of the rule.

However, the authorization for E-Verify by Congress is scheduled to expire Sept. 30 under a so-called sunset provision.

Meanwhile. experts disagree on the effect of that expiration and predict Congress likely will reauthorize the program before Sept. 30.

Nonetheless, there is a small chance that federal contractors will be facing only three weeks’ worth of compliance before E-Verify expires, said Randy Johnson, senior vice president for labor, immigration and employee benefits for the U.S. Chamber of Commerce.

“Unless Congress does something, this [E-Verify] will go away on Sept. 30,” Johnson said. “It would be a dead letter without underlying statutory authority.” However, he cautioned that Congress appears strongly in favor of reauthorizing the program. The chances of Congress letting E-Verify expire “are about 100 to 1,” Johnson said.

The House included funding and a two-year authorization for E-Verify in its version of the fiscal 2010 DHS spending bill. Separately, the Senate passed an amendment that would permanently reauthorize the program and require it for federal contractors and subcontractors. The E-Verify provisions would have to be reconciled and approved by both chambers, to become law.

However, another expert contends that DHS does not need Congress’ approval to continue enforcing E-Verify beyond the expiration date.

“DHS has broad ‘organic’ authority to implement the laws it is charged to execute,” said Alan Chvotkin, executive vice president for the Professional Services Council, a trade group for service contractors. “Congress authorized a pilot program for E-Verify, but DHS did not need statutory authority to implement the pilot or to continue with the E-Verify system – as long as Congress does not specifically deny them appropriations to do so.”

E-Verify has existed for more than a decade as a voluntarily pilot project, and former President George W. Bush made it mandatory for federal contractors.

It is a Web-based system run by DHS in partnership with the Social Security Administration. Employers use E-Verify by entering the Social Security numbers of prospective new hires and current employees. If there is a match, the employee is eligible for work. If not, the employee is advised to contact SSA to determine the source of the problem. The program has been controversial due to errors in the databases involved.

In 2008, the U.S. Chamber and other plaintiffs sued to stop E-Verify from being implemented for federal contractors. A district judge on Aug. 26 ruled against those organizations. On Sept. 1, the plaintiffs filed an emergency motion for an injunction, pending an appeal.

The U.S. Chamber has asked Congress to soften the effect of mandated E-Verify on federal contractors, Johnson said. This could be done with amendments to limit the requirement to new hires only, including liability protections for contractors and approving “reasonable” exemptions for certain types of contractors and contracts, according to an Aug. 12 letter from the chamber to congressional leaders.