Mandatory E-Verify for Employers Getting Closer to Reality

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By Laura D. Francis

A years-long quest to require all U.S. employers to use an electronic system to check employees’ work authorization could soon come to fruition.

“With each passing day, E-Verify becomes more of a fait accompli,” said Mark Krikorian, executive director of the Center for Immigration Studies. There is “pretty wide consensus that E-Verify needs to become universal.”

As Immigration and Customs Enforcement continues to ratchet up its work-site enforcement efforts, some employers remain concerned about getting audited as a result of an unintentional slip-up in E-Verify. Small employers also find the time and expense of using the system daunting.

But for the most part, strident opposition to E-Verify is relegated to the agriculture industry, which has a sizable undocumented workforce. If growers come on board, legislation making E-Verify mandatory actually may stand a chance of passing.

Beyond the I-9

Since 1986, employers have had to check new hires’ identity and work authorization documents to ensure they aren’t illegally employing undocumented immigrants. They also complete a form known as an I-9.

E-Verify takes that process a step further by allowing employers to put their employees’ information into an electronic database that compares it to government records. Unlike the I-9 process, E-Verify is voluntary for most employers.

The Ag and Legal Workforce Act (H.R. 6417), introduced July 18, would change that.

The bipartisan bill would make E-Verify mandatory for all employers, phased in over a two-year period. The bill also sets up a new agricultural visa program to get buy-in from the agriculture industry. More than 200 agricultural groups support H.R. 6417, according to the House Judiciary Committee.

‘Flash Point’

Any immigration legislation is a tough lift for Congress, so H.R. 6417 is unlikely to move on its own. But there’s a chance E-Verify could become part of a larger immigration package if lawmakers are spurred to take up the issue again in the fall.

Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas is considering a lawsuit challenging the legality of the Deferred Action for Childhood Arrivals program, which provides deportation protection and work permits to young, undocumented immigrants who came to the U.S. as children. He happens to be the same judge who blocked a similar Obama administration program for the undocumented parents of U.S. citizens and lawful permanent residents.

If Hanen puts a hold on DACA, it places him in direct conflict with at least three other federal judges who have ordered the program to continue despite the Trump administration’s efforts to end it.

That “will create a flash point” that Congress will be pressured to address, Ali Noorani, executive director of the National Immigration Forum, told Bloomberg Law. If prior attempts at dealing with DACA are any indication, it likely will be paired with other immigration measures, including E-Verify, he said.

White House Support?

The White House dropped its call for mandatory E-Verify in February when trying to reach a DACA deal, opting instead to push for certain visa cuts. Whether that happens again, or whether E-Verify is put back in the mix, remains to be seen, Krikorian said.

If E-Verify has been “combined with a fix on the ag side of things,” then there’s a “good chance of passage in the House,” Randel Johnson of Seyfarth Shaw in Washington, told Bloomberg Law. “But it would still get hung up in the Senate,” said Johnson, who heads the firm’s Government Relations and Policy Group.

“There would be concern about E-Verify having an adverse impact on the broader undocumented population,” and it would take a lot to bring Democrats on board, Johnson said.

Mandatory E-Verify is a must-have for any deal that includes the legalization of undocumented immigrants, said Krikorian, whose organization supports lower immigration levels.

You need to “clean up the mistakes of the past,” but also make sure that there isn’t a similar undocumented population in the future, he said. Border security alone won’t stop illegal immigration because about half of undocumented immigrants came to the U.S. legally and overstayed their visas, he said.

“Weakening the job magnet through mandatory E-Verify is the only thing that will address all of it,” Krikorian said.

Beyond Agriculture

There haven’t been many employer complaints about E-Verify in recent years, other than it being an “administrative hassle,” Johnson said. The U.S. Chamber of Commerce, where Johnson previously served as senior vice president of labor, immigration, and employee benefits, now supports mandatory E-Verify despite past opposition.

Some non-agricultural employers still have reservations about the system, said Jeffrey Bell of Polsinelli PC in Kansas City, Mo. One of the main concerns is that an “innocent mistake” could lead to an ICE audit, he said.

Referrals to ICE based on E-Verify usage are up again after taking a dip at the end of the Obama administration, according to data obtained by Bloomberg Law via a Freedom of Information Act request. ICE referrals dropped to 49 in FY 2016 after peaking at 103 in fiscal year 2014. They rose to 87 in FY 2017.

E-Verify compliance actions also were up in FY 2017, although mostly in the form of emails and phone calls as opposed to desk audits and site visits.

The FY 2017 data only show the first few months of the Trump administration and could be a “blip” in overall enforcement trends, which are likely much higher, Bell said. Johnson found the FY 2017 data “surprising” considering the administration’s focus on immigration enforcement.

So far in 2018, ICE has been active in work-site enforcement. The agency has audited 5,278 businesses nationwide since January, according to a July 24 announcement.

Requiring E-Verify also takes an administrative toll on small businesses, Noorani told Bloomberg Law. “E-Verify takes the I-9 process and adds multiple expensive layers to it.”

“A small business doesn’t have an HR office” dedicated exclusively to onboarding and checking work authorization, Noorani said.

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