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Administrative Burden

Businesses unwilling to use E-Verify often point to the associated administrative burden. The Department of Homeland Security (DHS), which runs E-Verify, acknowledges that simply preparing to use E-Verify requires between a few days to several months, depending on a business’s size and processes. Human resources staff must devote time to enrolling in the program, and learning how to use it (via DHS manuals or online tutorials). Conducting the verification process and addressing issues that arise if E-Verify finds an individual ineligible to work requires time and resources.

However, the risks of noncompliance are significant. As previously reported here, the current administration’s approach to immigration enforcement centers upon employer audits. In April 2009, DHS issued a fact sheet, which revised its Worksite Enforcement Strategy to strengthen its focus on employer noncompliance. Two months later, 652 businesses received Notices of Inspections from Immigration and Customs Enforcement; at the end of the year, in December 2009, 1,000 faced audits, and the trend continues in 2010. From October 2009 to July 2010, businesses in Texas alone were fined over $600,000.

Also, although federal law makes E-Verify mandatory only for federal contractors, an increasing number of state and local governments have passed laws mandating the use of E-Verify. These laws typically apply only to public employers and contractors, but some states and municipalities require private employers to use E-Verify. In certain states and municipalities with proposed or actual immigration-related laws, use of E-Verify benefits employers because it provides a good faith defense to hiring violations.

The Legal Workforce

The lack of an available and willing legal workforce is another justification companies put forth for not using E-Verify. As an agricultural employer told The Fresno Bee, “[E-Verify] may work for Costco, but Costco doesn't have the problem I have,” i.e., a legal workforce shortage. The United Farm Workers of America, a large agricultural workers union, recently ran a campaign called “Take Our Jobs” that challenged individuals with legal U.S. work status to take illegal immigrants’ positions working in the fields. As noted by The Hill, only seven individuals accepted the challenge, the most notable being Stephen Colbert of Comedy Central’s “The Colbert Report,” who testified (in character) about his experience before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.

Farmers interviewed by The Fresno Bee stated their preference for a legal workforce, and some pending bills aim for this result. In October 2010, Senator Saxby Chambliss introduced a bill (S. 3912) that aims to provide a non-amnesty option for temporary agricultural workers and streamline the H-2A temporary worker program. The Menendez-Leahy comprehensive immigration reform bill seeks, among other things, to address shortcomings in existing worker programs that have led to undocumented migration.

Employers or individuals wanting to learn more about E-Verify can read Littler’s Insight, A Basic Guide to E-Verify and Related Immigration Compliance: Everything Federal Contractors and Others Need to Know to Comply with E-Verify Requirements, this blog’s E-Verify entries, or visit the DHS E-Verify page.

S.3932 addresses six major immigration topics, highlights of which include:

• Border Enforcement
  • Establishes border enforcement “triggers” that must be met before unauthorized immigrants can apply for permanent residency.
  • Requires the Department of Homeland Security (DHS) to review assets and staffing needed for border security and enforcement, and funds improvements and hiring in accordance with this review.
  • Clarifies that the power to regulate immigration rests with the federal government, not states and local authorities, and that the latter have no “inherent authority” to enforce federal immigration laws (outside of 287(g) agreements).
• Interior Enforcement
  • Requires DHS to track noncitizens’ departures to ensure they do not overstay their visas.
  • Expands penalties for passport, visa and immigration fraud.
  • Denies “visa waiver” privileges to countries whose citizens attempt to overstay visas.
• Worksite Enforcement
  • Requires that all employers adopt an employment verification system within five years.
  • Creates a new fraud- and tamper-resistant Social Security card.
  • Requires workers to use fraud- and tamper-resistant documents to verify work authorization.
• Reforming the Legal Immigration System
  • Creates the structure for a new nonimmigrant visa program (H‐2C) to address shortcomings in existing worker programs that have led to undocumented migration.
  • Expands labor protections in current H-2A, H-2B, H-1B and L-1 visa programs.
  • Incorporates the AgJOBS bill, which provides a path to permanent residency for farm workers and revises agricultural employer sponsorship requirements.
• Legalization of Undocumented Individuals
  • Creates Lawful Prospective Immigrant (LPI) status for non-criminal undocumented immigrants living in the United States since September 30, 2010. LPI applicants must, among other requirements, submit biometric and biographical data, undergo security and law enforcement checks, and pay a fine.
  • Incorporates the DREAM Act, which creates a path to legal status for individuals brought illegally to the United States as children, provided they meet certain criteria and enroll in college or the U.S. military.
• Immigration Integration and Other Reforms
  • Enhances programs and policies to help immigrants learn U.S. civics and the English language.
  • Provides humanitarian visas for Haitian children orphaned by the 2010 earthquake.
  • Requires the State Department to develop a strategy to reduce migration pressures.

The H-2A temporary agricultural program permits agricultural employers anticipating a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Foreign workers coming to, or already in the U.S., may qualify under the program. However, before an H-2A visa petition will be granted, the U.S. Department of Labor must certify that there is an insufficient number of qualified U.S. workers for the position and that the foreign worker’s employment will not adversely effect U.S. workers’ wages and working conditions.

This final rule is a product of the department's review of policy decisions underlying a previous revision of the H-2A regulations published in late 2008. It is intended to strengthen worker protections for both U.S. and foreign workers, increase workers’ wages, and provide greater access to the U.S. labor market. Additionally, it will create a national electronic job registry where job orders will be posted through half of the contract period.

The rule, which will take effect March 15, 2010, provides that American and foreign laborers working in identical occupations for the same employer be paid equally, regardless of their hire date. It also prohibits employers from shifting to employees the costs of recruitment, visa, and border-crossing fees, as well as other U.S. government-mandated fees.