Last week, in Chamber of Commerce of the United States v. Napolitano, Civil Action No. AW-08-3444 (Aug. 26, 2009), the U.S. District Court for the District of Maryland denied the Chamber of Commerce’s challenge to the Department of Homeland Security (DHS) rule that contractors who meet certain requirements must register for and use E-Verify to screen their employees. This rule, available at 73 Fed. Reg. 67,651, implements the June 2008 amendment to Executive Order 12989 requiring that federal contractors use the DHS’s electronic system to verify the employment eligibility of employees. It will go into effect September 8, 2009.
This rule will require all federal contracts over $100,000 and 120 days to include a clause requiring the use of the E-Verify system. Contracts to be performed overseas and contracts for commercially available off the shelf items (“COTS”) are exempt from the requirement. Subcontracts for construction or services over $3,000 must also include the same clause. Affected contractors and subcontractors must use E-Verify to ascertain the eligibility to perform work under federal contracts of both all new hires working in the United States and all employees performing work under the contract.