Is Mandatory E-Verify Good for Employers?

By Bruce E. Buchanan

In January 2017, Senator Charles Grassley (R-Iowa) introduced S. 179 – The Accountability Through Electronic Verification Act (ATEVA), which seeks to mandate E-Verify for use by all employers. Many supporters of mandatory E-Verify view it as a “digital wall”, akin to the border wall sought by President Trump. S. 179 has 11 co-sponsors, including: John Boozman (R-Ark.), Thad Cochran (R-Miss.), Bob Corker (R-Tenn.), Tom Cotton (R-Ark.), David Perdue (R-Ga) Richard Shelby (R-Ala.), and Roger Wicker (R-Miss.). A companion bill, H.R. 2461, was introduced in the House of Representatives by Leonard Lance (R-NJ-7).

Currently, E-Verify is a voluntary federal program, to verify the work authorization of newly hired employees. For certain federal contractors, FAR E-Verify is mandatory for newly-hired employees and current employees assigned to work under the federal contract. However, many states in this region, including Tennessee, Alabama, Mississippi, and Georgia, have state laws mandating its use by employers in their state for newly hired employees.

Key Aspects of ATEVA

ATEVA seeks more than the mandatory use of E-Verify by all employers for all newly-hired employees though that is certainly the most significant part of the bill. Federal contractors and federal government agencies are required to use E-Verify immediately, “critical employers,” as identified by the Secretary of the Department of Homeland Security (DHS), are required to use E-Verify within 30 days of designation, and all other employers must use E-Verify for newly-hired employees in one year. Within three years of enactment, all employers are required to check the work authorization status of all current employees. Currently employers, except certain federal contractors, are not allowed to use E-Verify to check the work authorization of current employees.

Under this bill, there are other significant changes in the use of E-Verify. The first is it would allow employers to use E-Verify before a person is hired if consent is provided by the employee. The second is it requires employers to re-verify an employee’s work authorization not later than three days after their employment authorization is due to expire. Currently, employers are prohibited from using E-Verify to reverify the employment authorization of an existing employee.

Enforcement Provisions of ATEVA

ATEVA also includes these enforcement/penalty provisions: employer’s failure to use E-Verify as a violation of the INA requirement to verify employment eligibility and creates a rebuttable presumption that the employer knowingly hired an undocumented worker; increases penalties for employers who illegally hire undocumented workers or fail to use E-Verify to between $2,500 and $25,000; and sets up a system to disbar employers from federal contracts and grants, who are convicted of specified hiring-related crimes.

Although the bill requests DHS to make recommendations on the simplification or elimination of the I-9 form, it does not require its elimination. In this regard, the bill does not go as far as SHRM’s recommendation – implementation of an electronic verification system that will eliminate the current I-9 paper-based system for an integrated electronic one.

Support from Trump and Most Mid-South Senators

President Trump has not, to date, taken a position on ATEVA. However, a January 2017 proposed Executive Order, which was leaked but never issued, stated the Secretary of DHS shall “submit to the President a list of options for incentivizing and expanding participation by employers in E-Verify, including by conditioning, to the maximum extent allowed by law, certain immigration-related benefits on participation in E-Verify.”

How do our Senators in the mid-south feel about this legislation? As previously mentioned, many of them are co-sponsors of ATEVA. Senator Lamar Alexander (R-Tenn.) has previously introduced a bill, SAVE Act, which required the mandatory use of E-Verify. Senator Johnny Isakson (R-Ga.) has previously supported allowing employers to use E-Verify to verify the work authorization of current employees. However, Senator Rand Paul has previously opposed E-Verify when it includes a “photo tool” because he believes “it will become a national ID.”

Outlook for Passage of ATEVA

With the election of Trump as President and Republicans controlling both the House and Senate, many think the chances of passing Senator Grassley’s bill are very good. However, history shows that immigration legislation is difficult to pass Congress. Senator Grassley has introduced ATEVA in each Congress since 2009, but it has never even had a Senate vote. The only immigration legislation to pass the U.S. Senator in years was the 2013 Comprehensive Immigration Reform (CIR) bill, which required the mandatory use of E-Verify by all employers though it did not have many other provisions of the ATEVA. Senator Grassley voted no on the 2013 CIR bill.

Also, it should be noted that every co-sponsor of the legislation is a Republican. Plus, the support of all Republicans is uncertain as some are libertarian-oriented and disfavor aspects of mandatory E-Verify. Some conservative groups, such as The Federalist Society and CATO Institute, oppose ATEVA because of its cost to implement and/or the government eventually becoming “big brother” through the passage of a national biometric ID card. With the Senate split 52 to 48 in favor of Republicans, it is unlikely that ATEVA, as a stand-alone bill, can garner enough Democratic support to break a filibuster. Democratic Senators would likely support an immigration bill, which included a path to citizenship for undocumented workers and mandatory E-Verify, but Republicans would likely oppose such legislation.

Is Mandatory E-Verify Good for Employers?

Whether mandatory use of E-Verify is a good idea for employers tends to split immigration attorneys. Clearly, the goal of having all employees be work-authorized is worthwhile, but at what cost to the employer. Many studies have shown E-Verify causes a heavy financial burden to employers. A second important concern is the “data-mining” of E-Verify statistics by USCIS, which is causing referrals to the Immigrant and Employee Rights Section (formally OSC) about possible citizenship status discrimination.

Overall, it is my opinion that E-Verify is worthwhile for employers. As to whether it should be mandatory for all newly-hired employees and current employees, I support its mandatory use for newly-hired employees, but not for current employees or reverification. I worry about possible abuse in those situations.

Bruce E. Buchanan, Attorney Siskind Susser PC

Bruce E. Buchanan, Attorney
Siskind Susser PC