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Although Arizona’s SB 1070 is the model for various immigration enforcement proposals in other states, the legality of SB 1070 is currently the subject of a challenge pending before the federal Ninth Circuit Court of Appeals. Also, a recent report estimated that business boycotts of Arizona due to SB 1070 have cost the state as much as $141 million in revenue. Accordingly, it will not be surprising if other states, after considering the costs associated with enacting Arizona-style legislation, decline to take that path.

In addition, not all states are eager to expand their role in enforcing immigration laws. As reported by The Seattle Times, Washington state has declined to sign an agreement to participate in a federal program, Secure Communities, under which fingerprints of jailed individuals are checked against a national immigration database. Moreover, officials in two California cities (including San Francisco) have inquired into opting out of the program. The Secure Communities program has been implemented in 788 jurisdictions across 34 states. 

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.

The stated failure rate is misleading, according to a U.S. Citizenship and Immigration Service (USCIS) synopsis (pdf) of the results. USCIS, a unit of DHS, contends that, overall, E-Verify’s accuracy rate was 96% and that only 6.2% of verifications processed concerned unauthorized workers. Accordingly, only 3.3% of total queries concerned unauthorized workers who were misidentified as authorized.

USCIS says it is actively working to lower the possibility of false positives by:

• partnering with states on data-sharing initiatives;
• developing methods for uncovering stolen identities and preventing them from being used for E-Verify purposes; and
• adding more photographs to the system. Currently, E-Verify’s Photo Tool checks applicants against green card and employment authorization document photographs. In fiscal year 2010, U.S. passport photos will be added, and USCIS is working to also add visa photographs.

Statistics indicate that almost 70% of foreigners employed or running businesses in Guangdong’s capital city, Guangzhou, do not possess legal permits. Moreover, local officials contend that there is a correlation between the rise in illegal immigration and increased criminal activity.

Guangdong officials are taking various steps to address the situation, such as intensifying efforts against foreigners’ illegal activities and setting up legal employment services for non-Chinese citizens. In 2010, a Law on Control of the Entry and Exit of Aliens will be submitted to the Standing Committee of the National People’s Congress.