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Despite Confusion at State Level, E-Verify Finds Federal Support

February 14, 2012
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Some 15 years after it was first introduced as an experiment, the federal government's E-Verify system for checking an employee's eligibility to work has evolved into a confusing patchwork.

In seven states, it is now mandatory for public and private employers, and 12 others require state agencies and contractors to use it. E-Verify, though, remains voluntary elsewhere, and California recently passed a law making government enforcement of the system illegal.

Making things more jumbled, federal contractors with contracts that contain the Federal Acquisition Regulation E-Verify clause are also required to use the system.

A remedy for the confusion would be a federal mandate, experts say. And lawyers who advise employers on E-Verify compliance believe it could become law.

"The amount of resources the federal government has put into E-Verify and the number of states that have made it mandatory do indicate ... a good probability that it will be a federal requirement in the future," says Katie Nokes Minervino, an associate at the law firm Pierce Atwood in Portland, Maine.

President Barack Obama and Mitt Romney, seen by many as the frontrunner for the Republican nomination to face Obama in the November election, have voiced support for a federal mandate.

"If I'm president, we'll put in an E-Verify system," Romney said in a presidential debate.

But a federal mandate could still face strong opposition, particularly from agricultural employers who fear it could drive them out of business. "There are issues with E-Verify being required on a federal level," Minervino says.

About 300,000 of the 2.2 million U.S. employers with five or more employees were enrolled in E-Verify in the fall of last year. Experts credit the federal government with working out some of the glitches in the system, for example by making it less likely to come up with a "false positive" that incorrectly identifies a legal worker as undocumented. But Eileen Scofield, a compliance lawyer with Alston & Bird in Atlanta, still encounters resistance from some employers.

"What employers don't like is it's one more administrative step that can lead them into unintended consequences and provide further exposure to government investigation," she says.

E-Verify's supporters, though, include the U.S. Chamber of Commerce, National Restaurant Association and National Association of Home Builders, who argue that it opens up jobs for the unemployed. Those groups have come out in favor of a Republican bill introduced last year, the Legal Workforce Act, which would make E-Verify mandatory for all employers. The bill passed the House Judiciary Committee on a party-line vote, but its prospects in the full House are uncertain, in part because it lacks a provision "carving out" agricultural workers from the program.

Since Georgia's E-Verify mandate went into effect July 1, 2011, the state's farm producers have reported a reduction in their workforce of as much as 50 percent. "Passage of the [federal] E-Verify bill could devastate not only the produce industry, but a large and vibrant section of American agriculture," an official of the United Fresh Produce Association has said.

Rather than a "carve-out" for agriculture, Latino labor groups support an "all or nothing" approach in which mandatory E-Verify compliance would be part of a broad immigration package that includes a guest-worker program.

"If there is comprehensive immigration reform, I don't think it passes without E-Verify," Scofield says. Obama has proposed phasing in mandatory use of E-Verify over a multiyear period "in conjunction with a program that requires the undocumented population to get right with the law."

A federal mandate could be passed "with a fix for the agriculture industry or as part of an immigration reform program," Minervino says.

But immigration reform has been bogged down in Congress for two decades. And even if a federal E-Verify mandate becomes law, experts are uncertain how it will be enforced.

Some states require an employer to be enrolled in E-Verify as a condition of being issued a business license but, Scofield says, "At the state level, enforcement still has baby teeth at best."

At the federal level, she says, E-Verify does not function as an enforcement agency and the U.S. Justice Department only has the authority to ensure the system is being used properly.

Matthew Heller is a freelance writer and editor based in Los Angeles. To comment, email editors@workforce.com.

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