Mandatory E-Verify and Workplace Immigration Enforcement

Enforcement of immigration sanctions against U.S. employers has resurfaced in Congress and has again become a lightning rod issue, in the Pacific Northwest and nationwide. 

The Legal Workforce Act, sponsored by Representative Lamar Smith (R-TX), was marked up by the House Judiciary Committee in September 2011, and could face a floor vote soon in the House.  The bill would mandate participation by all U.S. employers in the E-Verify program, a system designed to check the employment authorization status of employees. 

The proposal to make E-Verify mandatory now, in the midst of hard economic times, has garnered varied and divisive reaction.  The Seattle Times published an article regarding reactions of local small businesses and State government officials to making E-Verify mandatory.  Supporters of E-Verify say the system is easy to use and can potentially free up jobs for unemployed American workers.

Opponents of mandatory E-Verify say it hurts more than it helps.  Washington Governor Chris Gregoire and local farm-group representatives recently visited DC to lobby against the Legal Workforce Act, emphasizing the negative effect of mandatory immigration verification on the farm labor workforce in Washington State.  If Washington farm workers (most of whom are estimated to be undocumented) did not pass mandatory E-Verify screening, agricultural employers would be forced to either lay off a large part of their workforce and leave their crops unharvested, or keep their workers for harvest but expose their companies to significant fines and other liabilities.  Employers also have the option of trying to use the complicated H-2A visa program for seasonal agricultural workers, but even the House Committee on the Judiciary has acknowledged that this system is burdensome and may not meet employers’ needs. 

Given current trends, it could be only a matter of time before U.S. employers, large and small, agricultural and non-agricultural, would be required to use E-Verify or a similar system to screen all new hires.  The concept behind E-Verify–providing U.S. employers an immigration verification tool synced with federal government databases–is not a new one.   In 1996, Congress mandated the development of a pilot program in Section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act; this program has evolved to become E-Verify.  The federal government has been encouraging U.S. companies to enroll in E-Verify, and has taken other actions to ramp up enforcement of immigration sanctions against employers.   In recent years, Social Security no-match letters and unprecedented increases in I-9 and other workplace audits by the Department of Homeland Security have affected many U.S. businesses.  Under the current administration, employers have been assessed record fines for immigration violations.

Does your business have a plan in case you are targeted for immigration enforcement or audits, or have you thought about how mandatory E-Verify could affect you?  Here are a few suggestions to get you started thinking about immigration compliance for your company.