E-Verify contractor rule delayed again

The Obama administration has postponed until May a rule that would require federal contractors to check if newly hired employees are not undocumented immigrants.

The announcement comes at a time when lawmakers are pressing for requirements for companies receiving funds through the economic stimulus bill to check the citizenship of workers they hire. The House passed its stimulus bill on Wednesday.

A notice in the Friday-edition of the Federal Register announced that the rule, which would require government contractors to use the Homeland Security Department's E-Verify system to check the immigration status of all employees on projects exceeding $100,000 and on subcontracts that exceed $3,000, will not take effect until May 21. The rule originally was scheduled to become effective on Jan. 15, but five business interest groups, including the U.S. Chamber of Commerce, filed suit to delay implementation until Feb. 20.

"The federal government agreed that the new administration needs time to rethink mandatory E-Verify use, particularly in light of the stressed economy," said Robin Conrad, executive vice president of the National Chamber Litigation Center at the Chamber of Commerce. "We are hopeful that the incoming administration will agree that E-Verify is the wrong solution at the wrong time."

The Chamber did not respond to a request for an interview.

New Homeland Security Secretary Janet Napolitano, however, told The Washington Post she believes in E-Verify and the delay will be used to determine if the system is capable of handling the surge in workload that would result from the new rule.

The delay would give the Obama administration an opportunity to review the rule before it's widely applied to the private sector, said a spokesman with the Citizenship and Immigration Service, which manages E-Verify. The administration asked all agencies to put a hold on pending regulations until they can be reviewed. The spokesman also said the E-Verify system, which processed almost 6 million queries in fiscal 2008, has been tested to handle at least 10 times that amount.

"It would take resources, but the system could handle it," the spokesman said. "[E-Verify] could handle at least 65 million queries a year."

Agencies have been required to use E-Verify to check employees' immigration status since August 2007. The new rule that makes the program mandatory for contractors was proposed in an executive order signed by President Bush last June.

In addition to the contractor requirement, lawmakers on both sides of the aisle have been pressing in recent weeks to require companies receiving funds from the economic stimulus package to use E-Verify to ensure employees hired are eligible to work in the United States.

Rep. Jack Kingston, R-Ga., who introduced the amendment to make E-Verify mandatory for all jobs created by the stimulus bill, said he was disappointed by the delay for the contractor rule and he hoped the E-Verify requirement will remain in the final version of the stimulus package.

"It seems that we're going to keep fiddling with immigration reform rather than really try to do something that we know will help," Kingston said in an interview with Nextgov. "With the collapse of comprehensive immigration reform legislation, the best way to deal with it is incrementally. E-Verify is that way."

Kingston said he was "not overwhelmingly confident" that his amendment, which passed the House, would remain in the Senate version of the bill.

"I think DHS and the new administration are signaling that they are not real comfortable with this and not willing to give it a try," he said. "I'm hopeful, but I've been working this for many years and wouldn't be surprised if it gets cut."

Kingston's amendment has support on the Senate side from Sens. Jeff Sessions, R-Ala., and Ben Nelson, D-Neb. The two officials sent a letter to Senate leadership yesterday expressing their support for Kingston's amendment.

"American taxpayers are going to pay for every penny of this massive stimulus bill if Congress approves it," Sessions wrote. "The purpose of the package is to create new jobs for Americans. One common-sense way to ensure that lawful citizens benefit from the proposal is to require businesses to check a job applicant's legal status using the E-Verify system."

Controversy has dogged the E-Verify program, as critics, including the U.S. Chamber of Commerce, have argued that the system will be costly for companies and the results unreliable. An inspector general report released last year found the system's error rate to be above 4 percent, although DHS officials said the system is now 99.5 percent reliable.

Last fall, Congress passed a short-term extension of the program's authorization after Sen. Robert Menendez, D-N.J., blocked a bill to reauthorize the program for five years. Rep. Ken Calvert, R-Calif.., who authored the original legislation creating E-Verify, attached an amendment last week to the stimulus package that would reauthorize the program for four years. The amendment passed the House but must gain approval in the Senate, otherwise the program's authorization expires March 6.

Kingston said if his amendment doesn't pass, he still would be open to a limited implementation of the contractor requirement to test its effectiveness.

"Let's say the administration is sincere that there are real problems as opposed to political problems, and they want to do something," he said. "Let's not say all federal contractors, let's start with those working on military bases or limit it to a select amount of agencies or a select region and try it out. . . . If it's a disaster we would know, though I don't think it would be."