Mandatory E-Verify: One Step Closer to Reality?

Wednesday, October 5, 2011 - 00:00

On September 22, the House Judiciary Committee approved the Legal Workforce Act, a bill that would require nearly all employers in the United States to use E-Verify, the federal online employment eligibility verification system. With numerous and powerful supporters, the bill could move closer to upping the ante on worksite compliance than any other recent federal legislation.

What The Bill Would Mandate

The bill would move E-Verify from a mostly voluntary program - it is now required only of federal contractors and under some state immigration statutes - to the central obligation of the federal employment eligibility verification system. The requirement would be phased in over a two-year period, with the largest employers implementing the system within six months of enactment. Agricultural employers would have three years to comply. Employers who fail to comply would face steeper penalties, and the bill would make it a crime for a worker to knowingly provide a false Social Security number during the verification process.

Employers would be required to electronically verify all new hires, and would also be obligated to check the employment authorization of some current employees as well, including government employees, workers are critical infrastructure sites like airports, employees assigned to a state or federal contract, and employees whose names and Social Security numbers don't match federal databases or whose SSNs appear to have been used by more than one person. Current practice forbids employers from verifying current employees, except in limited circumstances if the employer is a federal contractor.

In a departure from current law, employers would be able to make a job offer conditional pending a positive e-verification.

The bill would also preempt states from enacting their own worksite compliance laws and would invalidate their existing statutes. But states would retain the prerogative to strip employers of business licenses for failure to use the verification system. This is in line with a recent Supreme Court decision affirming the ability of states to penalize noncompliant employers through licensing and similar laws.

Finally, recognizing that the current E-Verify program is ineffective against identity fraud, the bill would direct the Department of Homeland Security, the Social Security Administration and the National Institute of Standards and Technology to pilot a biometrics program for use in the verification process.

Prospects For Passage

In the current economy, with heightened focus on job creation and preservation for U.S. workers, it seems more likely than ever that a statute that would identify undocumented workers would garner widespread support, and so the Legal Workforce Act has, with over 60 co-sponsors.

But the bill has also provoked surprisingly vociferous opposition. Farmers' groups argue that the bill would decimate the agricultural industry, whose workforce has a high population of undocumented workers and longstanding difficulty in attracting U.S. workers. Rep. Dan Lungren (R-CA), a longtime E-Verify supporter, has proposed coupling the E-Verify mandate with an improved agricultural guest worker program. The Tea Party and libertarian wings of the Republican Party argue that mandatory E-Verify would cripple small businesses and kill jobs. Immigration restrictionists argue that states should not be stripped of the ability to enact their own enforcement laws.

Nonetheless, opponents of every stripe will face the Legal Workforce Act's tenacious principal sponsor, Lamar Smith, Chairman of the House Judiciary Committee. Warning supporters and opponents alike to "bring their sleeping bags" when the bill is considered, Chairman Smith signaled his determination to move the bill forward. Though it will face significant opposition in the Senate and could stumble as it proceeds to other House committees for approval, the Legal Workforce Act will at the very least set the bar for future employment compliance legislation. U.S. employers - justifiably frustrated with the outdated and ineffective I-9 process - will be watching.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com