House Panel Spars Over National E-Verify Mandate

Since the inception of E-Verify — the federal government’s largely voluntary employment eligibility verification system — in 1997, lawmakers have proposed making it mandatory for all employers. 

The U.S. House Subcommittee on Workforce Protections debated the call for a national mandate during a hearing in Washington, D.C., on Nov. 19. Lawmakers discussed both the program’s promise and its shortcomings, including its inability to detect identity fraud. 

Rep. Ryan Mackenzie, R-Pa., chairman of the subcommittee, opened the hearing by extolling the virtues of the program. “E-Verify helps protect Americans from having their wages undercut by bad actors hiring unauthorized workers. It also helps to provide a level playing field for employers who play by the rules,” he said. 

Since 1986, the Immigration Reform and Control Act has prohibited employers from knowingly hiring or employing unauthorized workers. All employers must review and verify documents establishing the identity and employment authorization of new hires. 

Using E-Verify, an employer can verify a worker’s employment authorization electronically in a matter of seconds through the Social Security Administration and Department of Homeland Security (DHS) databases, Mackenzie said. 

Approximately 98% of the time, the employer receives confirmation that employment is authorized, according to DHS reporting. When there is a mismatch, the employer informs the worker, who has 10 days to take action to resolve the issue. 

The E-Verify program is voluntary for most employers. Currently, about 1.39 million employers are enrolled in E-Verify, according to DHS. Twenty-two states mandate its use for some employers, and certain federal contractors must enroll. 

Toolkit: Complying with I-9 and E-Verify Requirements

Mackenzie conceded the system has flaws. “Fraud can still occur through the use of stolen Social Security numbers and other forms of identity theft,” he said. “But E-Verify helps employers comply with the law while advancing the public policy goals of ensuring a lawful workforce, protecting American workers, and guaranteeing a level playing field for businesses hiring legal workers.” 

Rosemary Jenks, co-founder and policy director of the Immigration Accountability Project in Washington, D.C., advocated for making E-Verify mandatory for all U.S. employers, and requiring states to share driver’s license data, including photos, with DHS for inclusion in E-Verify to decrease false positives. 

There are cases in which E-Verify confirms an unauthorized worker as authorized to work, she said, but “E-Verify is a critical tool for deterring illegal immigration to the United States and a necessary tool to prevent the exploitation of illegal labor by unscrupulous employers.” 

Democrats on the subcommittee criticized the program’s effectiveness and raised concerns. 

Rep. Ilhan Omar, D-Minn., described E-Verify as “ineffective and harmful to employers, immigrants, and American workers.” 

She added that the system “often generates errors that deny American citizens and legal permanent residents job opportunities for which they are fully qualified,” citing a 2019 study by the Cato Institute which revealed that over 70,000 legal U.S. workers were mistakenly flagged as not authorized to work.  

“If every employer were forced to use E-Verify, experts estimate that those errors would hit roughly 200,000 legal workers every year, with tens of thousands wrongly pushed out of the labor market entirely,” she said. 

The National Immigration Law Center opposes expanding E-Verify absent comprehensive immigration reform and robust worker protections, said Jessie Hahn, senior counsel, labor and employment policy at the organization based in Los Angeles. 

“E-Verify remains deeply flawed,” Hahn said, citing “persistent accuracy challenges,” the unfair burden of fixing E-Verify errors falling on workers, and the lack of an appeals mechanism for workers who receive erroneous results.  

In addition, she noted that research shows that mandatory E-Verify laws often drive workers into the informal economy.  “When states like Arizona and Mississippi adopted strict E-Verify mandates, undocumented workers who could not pass verification did not leave the labor market entirely — they shifted into ‘off-the-books’ jobs paid in cash, lacking basic labor protections,” she said. “These informal arrangements expose workers to wage theft, unsafe conditions, and threats of immigration enforcement, while allowing employers to evade minimum wage laws, overtime requirements, and tax obligations.” 

Hahn pointed out that participating in E-Verify also does not shield employers from worksite enforcement raids, I-9 audits, and penalties. “E-Verify offers no legal safe harbor,” she said. 

Employer Recommendations

E-Verify users also addressed ways to improve the program. Jaime Andress, vice president and CHRO of Caddell Construction, based in Montgomery, Ala., said Caddell has used E-Verify for nearly two decades, having processed over 1,000 new hires.  

“In that time, the system has proven reliable and efficient,” she said. But she added that improvements could be made, pointing to the system’s accuracy and the patchwork of varying state laws “that make compliance in general more complex and costly.”  

State requirements differ in who must use E-Verify and how it is enforced, creating compliance challenges and raising federal pre-emption issues, she said. “Putting in place a clear, uniform federal standard would serve everyone better.” 

Chris Gamvroulas, president of Ivory Development, a home builder and land developer in Salt Lake City, said his company began using E-Verify in 2010 in compliance with state law. 

Gamvroulas agreed that a national E-Verify mandate must include a strong pre-emption clause, preventing state and local governments from creating and enforcing their own verification requirements for employers. 

He added that a mandatory E-Verify program should contain a safe harbor provision for employers. “Whether the system falsely identifies an unauthorized worker as authorized, or vice versa, employers who rely in good faith on the information in the mandatory system should not be penalized for acting based on the system’s responses,” he said.  

Gamvroulas added that E-Verify should allow employers to begin the worker verification process as soon as possible in the hiring process, not after their start date. “In the event of a system error, this will allow us to have enough lead time to handle nonconfirmations to ensure any issues are rectified before the employee’s start date,” he said. 

Specialty Credential: U.S. Employment Immigration  

Subcontractor Cascade

Very few construction projects are built by a single contractor, Andress added. Most use several subcontracting firms, who in turn subcontract portions of their work to other subcontractors to complete a project.  

“It is important to understand that other than contract flow-down requirements, Caddell has no direct ability to dictate or oversee those firms’ hiring practices and, particularly in an environment where E-Verify is required, should not be held responsible for the hiring practices of those subcontractors,” Andress said.  

Gamvroulas agreed, emphasizing that a nationwide E-Verify mandate must continue to focus on the direct employer-employee relationship.  

“Under current law, employers must verify the identity and work authorization status of direct employees only,” he said. “Subcontractors are responsible for verifying the legal status of their direct employees, but all businesses are prohibited from knowingly using unauthorized subcontracted workers as a means of circumventing the law. Any new E-Verify mandate should remain consistent with current law regarding independent contractors.”