E-VERIFY UPDATES

E-Verify Federal Contractor Rule Delayed Again - On Hold Until June 30, 2009

The implementation of a rule amending the Federal Acquisition Regulation (FAR) to require that certain federal contractors and subcontractors use the federal government's E-Verify program has been suspended until June 30, 2009, according to a notice of delay published in the Federal Register on April 17, 2009. The notice of delay can be found at: http://edocket.access.gpo.gov/2009/pdf/E9-8849.pdf. On or after June 30, however, contracting officers must include the new E-Verify clause in affected contracts. In addition, contracting officers should modify, on a bilateral basis, existing contracts to include the clause on or after that date.

The Federal Register notice can be found at: http://edocket.access.gpo.gov/2009/E9-2060.htm. On January 20, President Barack Obama's Chief of Staff, Rahm Emanuel, issued a memorandum stating that executive departments and agencies should "[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect." The Chamber of Commerce requested that the federal government postpone the rule in compliance with the memorandum. The Department of Justice filed papers notifying the district court of these developments and of its intention to stay the proceeding during the Obama Administration's review of the rule, according to the Chamber.

E-Verify, administered by the Department of Homeland Security's (DHS) Citizenship and Immigration Services (USCIS) bureau in partnership with the Social Security Administration, is a voluntary, web-based program that allows employers to verify that their employees are authorized to work in the United States.

Litigation. On December 23, 2008, a coalition of business groups, led by the Chamber of Commerce's National Chamber Litigation Center, filed suit challenging the legality of an Executive Order and related federal procurement regulations. The complaint can be found at: http://www.uschamber.com/assets/nclc/chamber_v_chertoff.pdf.

According to the Chamber's complaint, the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), which created the E-Verify program by Congress, states that "the Secretary of Homeland Security may not require any person or other entity to participate in the pilot program." The Act, which created the program, clarified that the program is voluntary, not mandatory. Therefore, pleads the complaint, the requirements imposed by the EO and final rule are "illegal and must be set aside" because they violate IIRIRA's express prohibition against requiring forced participation in the program. The complaint also alleges, among other things, that requiring reverification of existing employees also exceeds the IIRIRA's mandate.

E-Verify is voluntary for private employers. Over 100,000 employers participate in the program.

FTC Announces Delay for Enforcement of ‘Red Flags’ Rule

The Federal Trade Commission (FTC) announced yesterday their decision to delay enforcement of the new “Red Flags Rule” until August 1, 2009, to give creditors and financial institutions more time to develop and implement written identity theft prevention programs. For entities that have a low risk of identity theft, such as businesses that know their customers personally, the Commission will soon release a template to help them comply with the law. Today’s announcement does not affect other federal agencies’ enforcement of the original November 1, 2008 compliance deadline for institutions subject to their oversight.

“Given the ongoing debate about whether Congress wrote this provision too broadly, delaying enforcement of the Red Flags Rule will allow industries and associations to share guidance with their members, provide low-risk entities an opportunity to use the template in developing their programs, and give Congress time to consider the issue further,” FTC Chairman Jon Leibowitz said.

The FTC staff has developed and published materials to help explain what types of entities are covered, and how they might develop their identity theft prevention programs. Among these materials is a website with more resources to help cover entities design and implement identity theft prevention program, www.ftc.gov/redflagsrule. The compliance template, as well as other resources to assist your organization in this effort will be available.

HOWEVER, this does not extend to the rule regarding address discrepancies applicable to users of consumer (credit) reports, which was effective November 1, 2008.

Look for more legislative updates coming soon . . .

Sources:
The Federal Trade Commission
CCH