E-Verify Mandate Passes Committee

SHRM-led coalition advocated for ID pilot program changes

By Roy Maurer March 5, 2015

The House Judiciary Committee approved the Legal Workforce Act (H.R. 1147) Mar. 3, 2015, which would repeal the current paper-based I-9 system and require all U.S. employers to verify the work eligibility of future hires through the government’s E-Verify system.

Authored by Rep. Lamar Smith, R-Texas, the bill passed 20-13, and is now cleared for full House consideration. Smith said that he doesn’t expect a full House vote for some months, until companion legislation dealing with agriculture guest workers is introduced and also passes the committee.

E-Verify checks the information from a worker’s I-9 form against Social Security Administration and Department of Homeland Security (DHS) records to ensure that they are eligible to work in the U.S. The program confirms 99.7 percent of work-eligible employees and is currently in use by 580,000 U.S. employers.

Committee Chairman Rep. Bob Goodlatte, R-Va., said expanding E-Verify nationwide “is a critical component to the interior enforcement of our immigration laws,” and brings the nation’s employment eligibility system into the 21st century rather than relying on the paper-based I-9 system that is susceptible to fraud.

Rep. Smith said the Legal Workforce Act “turns off the jobs magnet that attracts so many illegal immigrants to the United States,” and characterized E-Verify as one of the “most effective and efficient government programs.”

The legislation calls for a gradual phase-in for new hires in six month increments beginning on the date of enactment. Businesses employing more than 10,000 people would be required to use E-Verify within six months of enactment. Within 12 months of enactment, employers with 500 to 9,999 employees would be required to use the system. Eighteen months after enactment, businesses with 20 to 499 employees would be required to use it. And 24 months after enactment, businesses employing up to 19 workers would have to comply.

The bill allows a one-time six month extension of the initial phase-in for employers with 50 or fewer employees. In a key concession to the workforce reality that up to 70 percent of agricultural workers are undocumented, farm employers would not have to use E-Verify for up to 36 months after enactment.

Other components of the bill include:

  • Allowing employers to use E-Verify to check the work eligibility of current employees “as long as they do so in a nondiscriminatory manner” and also verify all the employees in the same geographic location or in the same job category.
  • Pre-empting duplicative state laws mandating E-Verify.
  • Allowing individuals to lock their Social Security number. The proposal also allows parents or legal guardians to lock the SSN of their minor children and requires DHS to lock the SSN and alert the owner if a pattern of unusual multiple use is found.
  • Granting employers safe harbor from prosecution if they use the E-Verify program in good faith, and through no fault of their own, receive an incorrect eligibility confirmation.
  • Raising penalties on employers who knowingly hire illegal immigrants and creating a penalty for individuals who knowingly submit false information to the E-Verify system.
  • Requiring DHS to conduct at least two pilot programs to help further prevent identity theft in the system.

Organizations such as the U.S. Chamber of Commerce, the National Restaurant Association, the National Association of Homebuilders, the International Franchise Association and the National Federation of Independent Business voiced support for the bill.

Democrats’ Concerns Voted Down

Failed amendments offered by committee Democrats touched on several issues including the harm that mandatory E-Verify would impose on the agriculture industry, due-process protections for workers not confirmed by the system in error, anti-discrimination protections and the right to seek class-action lawsuits as a remedy for dismissal due to a verification error.

The bill still contains several flaws, said Rep. Zoe Lofgren, D-Calif. “It doesn’t contain meaningful worker protections for authorized workers who lose their jobs because of erroneous nonconfirmations … no penalties at all for employers who violate the requirement to notify workers about tentative nonconfirmations … and without reform, expanding E-Verify would devastate the agriculture economy,” she said.

The Agriculture Workforce Coalition, an organization representing farm employers across the country, issued a statement opposing the legislation, stating that “any bill mandating E-Verify must only come after or in conjunction with legislation to address the labor crisis being faced by America’s farmers, ranchers and growers.” The group is asking Congress to create a new agricultural guest worker program.

Republicans agreed that a solution for the nation’s farm employers must be found before mandatory verification is enacted. The Legal Workforce Act “in no way diminishes the need for a workable agricultural guest worker program and in no way diminishes my commitment to having this committee consider such a bill as soon as possible,” Goodlatte said.

Rep. Darrell Issa, R-Calif., suggested forming a bipartisan working group, which was met with some agreement from Democrats. “We cannot move this bill in a vacuum. We are employing in Southern California disproportionately people who are undocumented and E-Verify alone will … leave us with an eventual workforce disaster,” he said.

SHRM Not Satisfied

The Society for Human Resource Management (SHRM), the Council for Global Immigration (CFGI) and other groups represented in a SHRM-led coalition submitted a statement to the committee in February—as the bill’s language was being finalized—in support of legislation ensuring more effective worksite enforcement but pointing out that E-Verify needs a security overhaul.

“The current E-Verify system cannot ensure a job applicant’s identity, which leaves the system susceptible for unauthorized individuals to use fraudulent identities to gain work authorization,” said Chatrane Birbal, SHRM’s senior advisor for government relations.

SHRM said that the Legal Workforce Act takes initial steps toward addressing the security issue but needs to go further. “We appreciate the many improvements to the current system proposed in the Legal Workforce Act, including creating a seamless, entirely electronic, employment verification system. … a vast improvement over the current paper-based, two-part verification system that in practice results in a focus on imposing liabilities on employers for paperwork violations, as opposed to curbing unauthorized employment.”

However, SHRM still sees a major problem unresolved: employers not having a reliable mechanism in E-Verify to confirm that the person applying for a job is actually the person who owns the identity on the documents provided.

H.R. 1147 includes a couple of changes advocated for by the coalition aimed at finding a security solution. SHRM, CFGI and other coalition members recommended that identity authentication pilot programs should be implemented within 24 months of enactment and should be available to any employer that volunteers to participate. The bill requires DHS to conduct at least two pilots aimed at using technology within the E-Verify system to help prevent against identity theft.

Employers participating in the pilots may cancel their participation after one year. DHS will have to provide a report to Congress on the findings of the pilots, including the authentication technologies chosen no later than twelve months after the programs begin.

In the previous version of the legislation, participation in the pilots would have been dependent on DHS discretion and selection, and the agency was required to develop the pilot program within 48 months. “Our coalition has been informing lawmakers and their staffs that the 48-month deadline for creation of the programs is an excessive period of time to allow identity theft to expand without a government response,” said Birbal.

“We are pleased to see the committee included changes that both CFGI and SHRM have been asking for to begin to provide more certainty to employers they are hiring a legal workforce, but there is still work to do in that regard and we look forward to continuing to have those discussions with key legislators and staff,” said Rebecca Peters, director and counsel for legislative affairs at CFGI.

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy


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