Is Mandatory E-Verify In Your Future?
What is E-Verify?
E-Verify is an internet-based service administered by the federal government that allows employers to run information about employees, namely new hires, through Department of Homeland Security and the Social Security Administration databases to attempt to verify work authorization.
E-Verify is (mostly) voluntary (for now)
Under federal law, E-Verify is currently a voluntary program, with only certain federal contractors required to use the program.
State action and a green light by the US Supreme Court
More than a dozen states (and other municipalities, counties, townships and local governments) have passed legislation or are subject to an Executive Order mandating participation in E-Verify. The majority of these require E-Verify on a limited basis (public employers and/or state contractors.)
A few states have passed laws that make E-Verify participation mandatory for all employers. The Supreme Court recently issued a decision that held that Arizona’s requirement for mandatory E-Verify participation was not preempted by federal law. This decision in effect blessed other states’ laws requiring E-Verify and opened the door for similar future state-by-state legislation.
Federal developments
This week, Representative Lamar Smith (R - Texas) introduced the “Legal Workforce Act”, legislation proposing that E-Verify be mandatory for all employers hiring workers in the United States.
While bills have previously been offered that would require mandatory federal E-Verify, Rep. Smith’s legislation is widely believed to have a strong likelihood of passage in the House and reasonable probability of success in the Senate.
While passage of a law requiring all employers to use E-Verify is not definite, what is certain is that there will be a heated debate on the issue. President Obama in his Blueprint for Building a 21st Century Immigration System recently endorsed mandatory federal E-Verify, but importantly, on the condition that it is paired with a legalization program.
Take-Away for Employers
Employers should be aware, informed, and to the extent they are interested, engaged in the E-Verify debate. Proponents for E-Verify view the system as an important additional layer of protection in the employment verification process. Employer opponents articulate legitimate concerns about the impact that mandatory E-Verify will have on the US economy given that the databases that it searches are not 100% accurate, which may result in loss of productivity and even employment for qualified US workers. Opponents also note that there is a cost to businesses in implementing and participating in the program.
All employers should keep abreast of developments in the localities in which they employ workers and on the federal level, so that they are fully compliant with any mandatory usage requirements. Employers should also consider implementing an E-Verify participation plan, in the event the employer may be required to use the program in the future. Mandatory requirements will generally include a “ramp-up” period after passage of a law requiring the program, but employers should familiarize themselves with the basic requirements of the program and consider implementing the program on a pilot basis in one or more locations to minimize the burden in case the employer is required to enroll and use E-Verify under a local, state or federal mandate.
For more information, please contact Pierce Atwood immigration partner Katie Minervino at kminervino@pierceatwood.com. You can also follow Katie on Twitter (@kminervino) as she tracks E-Verify developments.