E-Verify is the Internet-based system operated by the Department of Homeland Security (DHS) in cooperation with the Social Security Administration that allows participating employers to electronically verify the employment authorization of newly-hired employees. Although the federal law creating E-Verify makes employer participation voluntary, the Bush Administration published a new regulation in November of last year requiring many federal contractors to use E-Verify for new hires and to reverify existing employees working on covered contracts. (For an overview of the regulation, see Ogletree Deakins’ November 14, 2008 E-Alert.) This month, DHS postponed the implementation and effective date of the regulation from January 15 to February 20 (see Ogletree Deakins’ January 12, 2009 E-Alert) in the face of a lawsuit by interested business groups contesting the validity of the regulation.

Several states also have acted to make E-Verify mandatory for some or all employers within the respective states. Arizona has the most extensive law as all employers are required to use E-Verify for new hires, with new laws in Mississippi and South Carolina phasing in new employment eligibility verification requirements on all employers in the coming months. (For an overview of these state laws, see the December 2008 issue of the Immigration eAuthority.)

As of this time, litigation contesting the validity of the new federal contractor/E-Verify regulation continues as do state efforts to enact laws relating to E-Verify for employment eligibility verification. Employers with federal contracts or who do business in several states will need to stay up to date on the changing requirements.

Note: This article was published in the January 2009 issue of the Immigration eAuthority.

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