Business groups sue over Homeland Security E-Verify program

The U.S. Chamber of Commerce and other business organizations filed suit against U.S. Homeland Security Secretary Michael Chertoff last week, complaining that the Homeland Security Department cannot legally require federal contractors to use its online worker verification database.

Beginning January 15, 2009, the department will require certain federal contractors and subcontractors to use its E-Verify system, an online database run by the Homeland Security Department and the Social Security Administration against which employers can check a person's work status. Use of the system is voluntary, but President George Bush signed an executive order earlier this year requiring federal contractors to electronically verify their workers' employment eligibility.

The lawsuit, filed on December 23 in the U.S. District Court for Maryland's southern division, asks the court to declare the executive order and subsequent rule changes to be illegal and void, since the president's order is in direct contradiction to the law, which says that no person or entity shall be compelled to participate in the E-Verify program. The only exemptions are federal agencies, the legislative branch, and certain immigration law violators.

Along with the chamber, the plaintiffs in the case include the Associated Builders and Contractors, the Society for Human Resource Management, the American Council on International Personnel, and the HR Policy Association.

The rule change will apply to all new hires for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. It also will apply to certain existing employees who were hired after November 6, 1986, but the plaintiffs complained the "relative ambiguity" of the new rules will force many companies to electronically verify all of their employees hired after that date.

While Bush's executive order stated that the new requirement was "designed to promote economy and efficiency in federal government procurement," the lawsuit alleges it will create a "significant expense and time burden" on many of the plaintiffs' member companies. It also says the requirement "increases substantially the likelihood that many of plaintiffs' respective members will face expensive and time-consuming lawsuits brought by individuals who believe they have been discriminated against on the basis of race and/or national origin."

"The DHS intends to expand E-Verify on an unprecedented scale in a very short time frame and to impose liability on government contractors who are unable to comply," said Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the U.S. Chamber. "Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America's businesses."

More than 90,000 employers have signed up to use E-Verify, said DHS spokeswoman Laura Keehner, and the DHS' efforts to provide such programs are reflected in lower illegal immigration rates.

With the free system, "there is little excuse for companies to engage in hiring illegal workers," Keehner said. "This is just another delay tactic."

E-Verify, she said, shows "we have taken seriously the charge to gain back the trust of the American people to enforce immigration law."