The future of the government’s electronic employment eligibility verification program, known as E-Verify, was the focus of the May 16, 2013, markup session of the Senate’s comprehensive immigration reform bill (S.744).
The Senate Judiciary Committee adopted seven amendments, including requirements that the Department of Homeland Security (DHS) notify individuals when their names are run through the E-Verify system, that parents be allowed to block a minor’s Social Security number to avoid identity theft and that the DHS create an advocacy office to help small businesses comply with Form I-9 and E-Verify requirements.
The largest proposed change to the bill, offered by Sen. Charles Grassley, R-Iowa, would have required all employers to use E-Verify within 18 months of the measure’s enactment, instead of having E-Verify rolled out in phases over five years, with the largest employers using the system first.
Grassley’s proposal was defeated by a 13-5 vote, with three Republican senators joining the 10 Democrats on the panel.
“We all want E-Verify to work as quickly as possible. The problem is, it would be virtually impossible to have it work in 18 months,” said Sen. Charles Schumer, D-N.Y., one of the senators in the “Gang of 8” that crafted the legislation.
Another Grassley amendment that was voted down would have prevented the immigration bill from pre-empting state laws requiring the use of E-Verify until the system was made mandatory for all employers.
However, Grassley did get an amendment approved that would require U.S. Citizenship and Immigration Services to provide weekly reports to Immigration and Customs Enforcement (ICE) officials about the individuals flagged by E-Verify. “The left hand of government ought to know what the right hand is doing,” Grassley said. The proposal originally also included the requirement that ICE investigate each instance of nonconfirmation, but the senator agreed to strike that provision after it was challenged as unworkable.
The committee approved an amendment from Sen. Al Franken, D-Minn., that would require the DHS to conduct annual audits of the system to reduce the error rate. This would give the agency an incentive to improve E-Verify, Franken said.
Franken was persuaded to shelve another amendment that would have exempted businesses with 14 or fewer employees from E-Verify until low error rates had been achieved. Schumer called that proposal a deal breaker.
In addition, the committee approved a proposal put forth by Sen. Chris Coons, D-Del., that would require the DHS to notify individuals whenever their identity is checked through E-Verify. As written, the bill had given the department discretion to notify.
The fate of E-Verify was debated at a House of Representatives hearing held the same day as the Senate markup.
Witnesses and House members generally expressed support for the Legal Workforce Act, a stand-alone bill that would make E-Verify mandatory for all employers.
Angelo Amador, vice president of labor and workforce policy at the National Restaurant Association, told the House Judiciary Subcommittee on Immigration and Border Security that the House bill was the “best employment verification mandate that I have seen” and preferable to the Senate plan.
Provisions in the House bill include a safe harbor for businesses that use E-Verify in good faith, the right of companies to voluntarily use E-Verify for their current employees, as long as they check the identity of the entire staff, and the ability of an individual, a parent or the Social Security Administration to “lock” a Social Security number in certain circumstances.
Concerns about the system remain, however. Rep. Zoe Lofgren, D-Calif., said imposing E-Verify on the agriculture industry would be catastrophic without first granting its workers—the majority of whom are undocumented—legal status.
“Implementing E-Verify in isolation will only drive undocumented workers further into the shadows, subjecting them to even more exploitation,” agreed Rep. Luis Gutierrez, D-Ill.
Lofgren also took issue with the lack of due process protections for legal workers who may be fired because of an erroneous final nonconfirmation.
Rep. Steve King, R-Iowa, criticized the proposal that employers be required to use the system to reverify their entire current workforce, citing the administrative burden and cost.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
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