A federal court upheld an impending regulation that will require government contractors to certify the employment eligibility of their workers using the Homeland Security Department's E-Verify system.

Judge Alexander Williams of the U.S. District Court for Maryland said in an Aug. 25 ruling that DHS didn't break the law when it mandated that contractors use the system to check the employment status of their workers.

The plaintiffs in the case, which include the U.S. Chamber of Commerce, argued that the law authorizing E-Verify prohibited DHS from requiring any group to use E-Verify, a Web-based system employers can use to check personal information such as Social Security numbers to confirm their employees are legally able to work in the U.S.

The court ruling paves the way for the implementation of the rule, which had been delayed since January because of the case. The rule fulfills a Bush administration executive order mandating that contractors use the system to verify employment status to prevent illegal immigrants from performing government work.

Starting Sept. 8, new federal contracts worth more than $100,000 will include a clause requiring contractors to use E-Verify to certify the employment eligibility of any current employees who will work under the contract. The rule also requires contractors to use E-Verify to certify the eligibility of all new hires regardless of whether they'll work on behalf of the government. Existing contracts lasting more than six months can be modified to add the requirement, but only if the contractor agrees.

"We're pleased that the court has ruled in favor of a program that we're confident provides the best means to ensure the eligibility of individuals to work in this country," said Matthew Chandler, a DHS spokesman.

Eric Bord, an immigration attorney with the firm Morgan, Lewis and Bockius, said the rule could force contractors to re-evaluate the eligibility of all of their employees because it might be too difficult for government contractors to pinpoint who is and isn't working on a federal project. It may be easier to accept the burden of checking all employees than risk debarment for running afoul of contract conditions.

Contractors that won't have contracts with E-Verify requirements also will face challenges if they want to use E-Verify voluntarily. Federal immigration law prevents them from recertifying employees unless they are bound by a contract requiring them to do so, Bord said.

Bord recommended, however, that those contractors volunteer to use E-Verify for new employees, so they are familiar with the system when the time comes to screen all employees for a government contract.

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