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February
2, 2009
Government Delays Two Rules:
I-9 Rule and E-verify Rule for Federal Contractors
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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