E-Verify System Under Increasing Criticism, Legal Challenge

Published March 1, 2009

The U.S. Chamber of Commerce is challenging the legality of requiring federal contractors to use the Homeland Security Department’s E-Verify system, a free Web-based tool using Social Security Administration files, to ensure employees are legal immigrants or citizens eligible to work in the United States.

Joining the Chamber as co-plaintiffs in the lawsuit are industry associations including the Associated Builders and Contractors, Society for Human Resources Management, American Council on International Personnel, and HR [human resources] Policy Association.

The complaint, filed in January in a Maryland federal court, challenges the government’s use of an executive order coupled with federal procurement law to make E-Verify mandatory for federal contractors in projects exceeding $100,000 and for subcontractors in projects exceeding $3,000. The Chamber also challenged expanding E-Verify to require the reauthorization of existing workers.

Analysts Agree with Suit

“This massive expansion of E-Verify is not only bad policy, it’s unlawful,” the National Chamber Litigation Center’s Robin Conrad said in a press release.

“I believe the Chamber has a case,” said James Alexander, managing partner for Maggio Kattar, a Washington, DC-based immigration law firm. “As the Chamber points out, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 the Secretary of Homeland Security is supposed to conduct pilot programs of employment eligibility confirmation. These are supposed to be voluntary programs and limited to new hires.”

Alka Bahal, co-chairman of the corporate immigration practice group at Fox Rothschild, a Philadelphia-based law firm, also thinks the Chamber is on solid ground.

“The rule as it stands now is very overreaching,” Bahal said. “The feedback that we receive is that the rule is extremely burdensome. One of the problems is that a company may work on government contracts in one location, but they have to roll out e-verify to any other plants they have.”

Gray Areas

According to Alexander, the executive order requires existing employees—as well as new hires—to be re-verified if they are assigned to contracts with government agencies.

However, the executive order also says re-verification rules should not include employees who do support work and perform no substantial duties applicable to the contract. That leaves a lot of gray areas about who should and who should not be re-verified, Alexander said.

“Most companies would rather err on the side of caution, so they would re-verify everyone in order to get it right,” Alexander said.

Harsh Punishment

Missing an employee who should be re-verified could result in fines and elimination from government programs, according to Alexander.

“This would place a substantial economic burden on these companies, though in the announcement of the executive order, it was stated that this would not be the case,” Alexander said.

Once enrolled in a re-verification program, the companies must use a series of tests for employees working on the government projects. The tests can cost contractors a significant amount of time, and time is money, Alexander notes. “One test alone is 46 pages long,” Alexander said.

The E-Verify rules don’t do anything more than can be accomplished through the I-9 process already required by the Immigration and Control Reform Act of 1986, Alexander added. “This [E-Verify] adds a lot of additional tasks on top of others that already do the same thing,” he said.

Phil Britt ([email protected]) writes from South Holland, Illinois.