U.S. Chamber of Commerce Supports Mandatory E-Verify Law

By Suzanne Potter-Padilla

On February 27, 2013, the House Judiciary Committee’s Subcommittee on Immigration and Border Security heard testimony regarding improvements made to E-Verify. While committee members acknowledged that E-Verify still suffers from some shortcomings, the message coming out of the hearing was clear that businesses in the U.S. had adapted to using E-Verify and are happy with its results. A representative from U.S. Citizenship and Immigration Services (USCIS) testified that E-Verify use has expanded to 432,000 employers, compared to only 24,000 in 2007. She also testified that surveys taken of its employer users indicate that the majority are confident in E-Verify’s accuracy and would recommend it to other employers.

A representative from the U.S. Chamber of Commerce told the subcommittee that while in the past the chamber resisted efforts to expand E-Verify, recent improvements in the system and feedback from chamber members have caused it to reassess its position. The U.S. Chamber of Commerce now supports a mandatory E-Verify law for all employers to be phased in over the next three years, provided that certain conditions are met. The U.S. Chamber of Commerce hopes to see a federal E-Verify law that preempts state and local verification laws, eliminating the possibility of a patchwork of laws nationwide, and opposes any law that would require employers to verify the employment authorization of existing employees. The representative from the chamber also testified that employers should continue to enjoy a safe harbor when they rely on the information generated by E-Verify.

The fact that the U.S. Chamber of Commerce now supports a mandatory E-Verify law will certainly make the prospect of such a law quite possible, either as part of President Obama’s effort to institute comprehensive immigration reform or as an independent initiative over the coming years. It is still unclear whether a mandatory E-Verify law would require U.S. employers to run only new hires through the system or both new hires and existing employees.

New Bills to Address Immigration Issues Proposed in Senate

By Scott Decker

Two immigration reform bills recently introduced in the U.S. Senate will likely be included in the comprehensive immigration reform discussions currently underway in Congress. One is a “carrot,” providing additional visas for foreign investors, and the other is a “stick,” providing enhanced verification of workers’ employment authorization.

On January 30, 2013, Senators Mark Udall (D–CO) and Jeff Flake (R–AZ) announced their intention to reintroduce the bipartisan Startup Visa Act. The proposed bill would create an employment-based immigrant visa for alien entrepreneurs who have received significant capital from investors to establish a business in the United States. Under this proposal, immigrant entrepreneurs and foreign graduates of U.S. universities could apply for a two-year visa on the condition that they secure financing from a qualified U.S. investor and can demonstrate the ability to create U.S. jobs.

On January 31, 2013, Senator Charles Grassley (R–IA) introduced S. 202, the Accountability Through Electronic Verification Act of 2013. This bill proposes to expand the use of E-Verify, a voluntary internet-based system that allows businesses to determine the employment eligibility of their workers by comparing information reported on an employee’s Form I-9 to information in databases maintained by the Department of Homeland Security and the Social Security Administration. The Act would make use of the E-Verify program mandatory for all employers, allow employers to use E-Verify before a person is hired, and require employers to check the status of all current employees within 3 years. Moreover, employers would be required to terminate the employment of those found unauthorized to work due to a check through E-Verify.

Additional immigration-related bills are expected to be introduced in the coming weeks, consisting of additional “carrots” and “sticks.”  

Bipartisan Immigration Plan Released Today

By Michelle Valerio

A group of Democrat and Republican senators released the Bipartisan Framework for Comprehensive Immigration Reform, the latest bipartisan effort for comprehensive immigration reform to fix the broken U.S. immigration system. Although the legislation is not drafted yet, the framework of the plan is based on the following four principles:

  1. Providing a path to citizenship for unauthorized individuals currently residing in the United States, contingent upon improving border security and combating visa overstays.
  2. Reforming the immigration system to improve the U.S. economy and strengthen American families.
  3. Creating a mandatory electronic employment verification system – this system would differ from E-Verify, which is mandatory only for federal contractors and in some states.
  4. Improving the process for issuing nonimmigrant work visas (i.e., H-1B, L-1, etc.).

The plan was made public today. The draft legislation is not expected to be unveiled until March, with the expectation that it will be voted on that month. President Obama is scheduled to speak tomorrow in Las Vegas, Nevada, where he is expected to provide a blueprint for his own immigration reform proposal.

House Passes Bill Extending Immigration Programs

By Ilyse Schuman

Update: On September 28, 2012, President Obama signed this bill into law.

On Thursday the House of Representatives approved a bill that reauthorizes for three years the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program. All four of these programs were slated to expire at the end of this month. The House-approved bill (S. 3245) sets September 30, 2015 as the new expiration date.

As previously discussed, the four programs granted extensions do the following:

  • The E-Verify program assists employers in verifying the employment eligibility of its employees.
  • The EB-5 Regional Center program is available to immigrant entrepreneurs who invest between $500,000 and $1,000,000 in a U.S. business that creates 10 full-time jobs for American workers. In exchange for job creation the entrepreneurs are given permanent resident status.
  • The Special Immigrant Religious Worker program provides a path to permanent residence for religious workers in the United States. The religious workers can hold a professional or non-professional position within their religious vocation.
  • The Conrad State 30 J-1 Visa Waiver program assists medical doctors studying in the United States on J-1 status. Each state receives 30 J-1 visa waivers for foreign medical graduates each fiscal year. A J-1 visa waiver eliminates the requirement that a J-1 physician return to his or her home country for two years before applying for a permanent U.S. visa

The Senate unanimously approved this measure last month, and it is expected to be signed into law.

E-Verify Self Check Now Available Nationwide

By Michael J. Lehet

Launched in March 2011, and subsequently available in 21 states plus the District of Columbia, E-Verify Self Check is now accessible in all other states plus Guam, Puerto Rico, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands. Self Check is available in both English and Spanish.

A part of E-Verify, Self Check allows individuals to confirm their eligibility to work in the United States by entering the same information used by employers in performing E-Verify inquiries (i.e., name, address, date of birth, Social Security Number, citizenship, and identity and work authorization credentials). Self Check compares this information against the same databases utilized by E-Verify to confirm employment eligibility. According to U.S. Citizenship and Immigration Services, Self Check benefits both workers and businesses, taking the “mystery” out of the employment eligibility verification process and allowing workers to resolve records discrepancies before accepting a new job. Importantly, Self Check is voluntary. Therefore, employers are prohibited from requiring applicants or employees to use the system.

A recent survey found an increase in the percentage of employers using E-Verify to confirm the work authorization of employees. Of those surveyed in 2011, 51% indicated they use E-Verify, as opposed to 28% in 2010.
 

Alabama Immigration Law Update

Alabama gained notoriety in June when Governor Robert Bentley signed into law HB 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. HB 56 quickly gained a reputation as the most aggressive in a long line of state immigration legislation and attracted interest (and ire) from the federal government, immigrant rights groups, and others. A recent federal court decision has halted implementation of certain provisions of the Act, but the central requirement that employers use E-Verify remains intact and on schedule. To learn more about the decision, the E-Verify requirements, and their implications for employers, please continue reading Littler's ASAP, Despite Legal Challenge, Effective Date Approaches for Key Provisions of Alabama Immigration Legislation, by Jorge Lopez and Patrick Simpson.

Alabama Enacts E-Verify Law

Alabama State FlagAlabama is now the most recent state to require all employers to enroll in and verify employment eligibility through E-Verify. This requirement goes into effect on April 1, 2012. The new law prohibits all Alabama employers, public and private, from knowingly employing unauthorized aliens. Additionally, the law prohibits state government entities from awarding contracts or providing grants or other incentives to employers that fail to enroll in and verify employment eligibility through E-Verify. This provision goes into effect on January 1, 2012. Violations of the law can result in significant penalties for employers. The new law also creates a state law cause of action for U.S. citizens and authorized aliens against employers that refuse to hire or that discharge them while knowingly or negligently employing unauthorized aliens. To learn more about the new law and its implications for employers, please continue reading Littler's ASAP Alabama Is Latest State to Enact E-Verify Requirement by Kelly Reese.

Mandatory E-Verify Law Reintroduced in the House

A bill that would expand the E-Verify employment verification system and require its use by all employers was reintroduced in the House on May 26. Introduced by Rep. Health Shuler (D-NC) and cosponsored by 37 others, the bipartisan Secure America through Verification and Enforcement (SAVE) Act (H.R. 2000) would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires. To learn more about the bill and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

Supreme Court Upholds Arizona Law that Sanctions Employers for Hiring Illegal Workers, Mandates Use of E-Verify

The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

Legislative Push for Immigration Reform Continues in Arizona

Arizona State CapitolArizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

  • making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
  • requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
  • requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

E-Verify Self Check Program to Launch on March 18, Allowing Individuals to Independently Verify Their Work Authorization Status

The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

The Self Check program is a two-stage process: Stage 1 requires users to verify their identities; Stage 2 examines whether the individual is legally authorized to work in the United States.
 

Stage 1: Identity Authentication

Self Check participants must first verify their identity, which is accomplished by answering between two and four “knowledge-based questions” built on information collected by third party Identity Proofing (IdP) services. The information, collected from financial institutions, public records, and other service providers, will include, e.g., the individual’s commercial transaction history, mortgage payments, or past addresses.

In the event insufficient identity verification sources exist, users cannot proceed to Stage 2. U.S. Citizenship and Immigration Services (USCIS) will receive notice that insufficient information exists, but no other information. Moreover, the agency will compile statistics on users’ inability to complete verification based on insufficient identity data.

If sufficient information exists but a user provides incorrect responses, he or she will “fail” and not advance to Stage 2. Again, USCIS will be alerted, but will not receive specific information relating to the failure, e.g., chosen responses. The information received will be used to generate statistics on failed attempts. Moreover, in the event of multiple attempts to authenticate an individual, the DHS contract authorizes the IdP to notify the information provider of potential fraud and to terminate access to E-Verify Self Check.

However, if sufficient information exists and the user provides correct responses, the user will “pass” and progress to Stage 2.

Stage 2: Confirmation of Work Authorization Status

In Stage 2, the user will be required to enter additional information based on documentation he or she would present to an employer during the Form I–9 process, which could include: citizenship status; Alien Number (if non-citizen); passport number; Form I– 94 number; and/or lawful permanent resident card or work authorization document (EAD) number. If the information provided matches information contained in federal databases (Social Security Administration, DHS, Department of State), ‘‘work authorization confirmed’’ will be displayed. However, if the information does not match, the screen will display “Possible mismatch with SSA/Immigration Information” and provide the user information on how to request correction of potential errors in database records.

Resolving Mismatches

If a mismatch occurs and the individual opts not to resolve it, E-Verify will close the case. However, if the user wants to resolve a Social Security mismatch, a form will be generated and detailed instructions provided on how to resolve the mismatch. For an immigration information mismatch, the program provides instructions on contacting E-Verify customer service to resolve the matter; contact must be made within 72 hours of the initial query. If the representative is unable to correct the record, the individual will be advised of further actions necessary to correct the error.

Establishing Work Authorization Without Identity Confirmation

If an individual is unable to authenticate through the IdP but wants to determine work authorization status prior to hire, USCIS will provide information on how to visit a Social Security Administration field office, access Social Security yearly statements, call USCIS, or submit a Freedom of Information Act/ Privacy Act request to access work authorization records. The individual will also be advised to check the information at the various credit bureaus and through a free credit check website.

What Arizona's Controversial Immigration Law Means for Employers

State Flag of ArizonaWith many in the nation watching, Arizona Governor Jan Brewer signed the "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070") into law. The legislation represents Arizona's latest effort to combat illegal immigration and is now the centerpiece of a national political firestorm, including criticism from President Obama and numerous public interest groups. In addition, SB 1070 already is the subject of two federal lawsuits challenging its constitutionality. Lost among this debate, however, are those provisions of the law directed toward Arizona employers. To learn more about the law and its implications for employers, please continue reading Littler's ASAP What Arizona's Controversial Immigration Law Means for Employers by Neil M. Alexander and Michael J. Lehet.

Draft Immigration Proposal Calls for Biometric Employment Verification, Increased Penalties Against Labor Law Violators

A 26-page outline of a new proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Within 18 months of the proposed bill’s enactment, the Social Security Administration would be required to issue biometric social security cards, which within five years would serve as the only acceptable document employers could use for employment verification purposes. The proposal also calls for a 300 percent increase in monetary fines against employers that knowingly hire illegal workers, and enhanced civil and criminal penalties against employers that engage in egregious labor violations involving unauthorized workers. To learn more about the proposal and the potential implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.

E-Verify Rule Postponed Until September 8, 2009

The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

Support of E-Verify Program Grows, But Critics Remain

As reported in The Los Angeles Times, the E-Verify program recently received a few boosts, with the Obama administration announcing that it wants Congress to allocate an additional $12 million to the program in the next fiscal year (bringing its budget to $112 million) and Department of Homeland Security Secretary Janet Napolitano stating in a congressional hearing that E-Verify was "a cornerstone of workplace enforcement across the country." Almost 125,000 businesses are signed up for the E-Verify program. Some argue, though, that E-Verify will not solve the issue of illegal immigration and that expansion of the program would only push more undocumented workers underground. Others generally support E-Verify but criticize the program’s accuracy rate. The government reports that E-Verify has a 96% accuracy rate, and Napolitano has stated that the government plans to improve the accuracy of the databases.

New Employee Verification Act Introduced; Proposes Alternative to E-Verify

Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act, will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.

The proposed legislation would:

  • Require all employers to use either the Electronic Employment Verification System (based on the new-hire system used to enforce child support payments) or the Secure Electronic Employment Verification System (which would authenticate an employee’s identity using biometric information). Data for recently hired employees would be checked against Social Security and Department of Homeland Security databases to determine work eligibility.
  • Eliminate the I-9 immigration form.
  • Establish civil and criminal penalties for employers that knowingly hire illegal immigrants.
  • Establish federal preemption of state laws on employment verification.
  • Require that the Social Security database, which has a 4.1% error rate, be cleaned up before the new system takes effect.

Giffords and Johnson have collaborated on the legislation with The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management.