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Government Delays Two Rules: I-9 Rule & E-Verify

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The government has now issued delays on two rules which were planned to take effect this month: (1) new rules for I-9 Employment Verification form; and (2) the Acquisition Regulation (FAR) which would make mandatory use of E-verify for federal contractors.

The USCIS has delayed the implementation of the new I-9 rules until April 3, 2009. The new rule, which was originally scheduled to take effect on February 2, would make several changes including a new Form I-9 Employment Verification Form, a narrowing of the list of acceptable documents that can be used for identity, and a prohibition against accepting expired documents as a form of identification. However, the new rules still left many unanswered questions such as how to document employment authorization for an H-1b worker pursuant to H-1b portability or a nonimmigrant worker authorized to continue working while an extension is pending pursuant to the "240 day rule".

Three agencies (Department of Defense, General Services Administration, and National Aeronautics and Space Administration) agreed to delay the E-verify rules for federal contractors. This is the second delay of this rule: it was originally scheduled to take effect on January 15, 2009 but was delayed until February 20, 2009. This recent agreement postpones the rule until May 21, 2009. Until then, the government cannot require federal contractors to use E-verify. In December, the U.S. Chamber of Commerce and other agencies filed a lawsuit seeking court injunction to prevent the Department of Homeland Security from enforcing the rule. The lawsuit claimed that the E-verify rule for federal contractors exceeded the statutory authority of legislation by making E-verify a mandatory program (as opposed to a voluntary pilot project implemented under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) and by requiring employers to verify existing employees assigned to contracts (contrary to the Memorandum of Understanding for E-verify which limits the use of E-verify to only "new" hires).

These delays are designed to provide the new Administration an opportunity to review the rules.

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