U.S. Congress Introduces Legislation Mandating E-Verify

E-Verify

Bills in both the U.S. House of Representatives and U.S. Senate have been introduced to make E-Verify a permanent and mandatory verification system for all employers, including federal, state and local government. The authorization for E-Verify expires September 30, 2012. Under current law, E-Verify is a voluntary program except for federal contractors. It applies to newly-hired employees. 

In the House, H.R.2885, the Legal Workforce Act requires all employers to use E-Verify, phased in by size of employer from 6 months to two years after enactment.   It exempts seasonal agricultural workers who return to work for previous agricultural employers. The bill would require federal, state and local government to verify all existing employees, not just new hires, who have not been verified through E-Verify. It would also preempt state and local laws addressing E-Verify and employer sanctions. 

In the Senate, S1196, the Achieving Accountability Through Electronic Verification Act, requires federal departments, agencies, contractors, and critical employers to participate in E-Verify and all U.S. employers to participate in E-Verify within one year of enactment. Employers must re-verify existing employees within three years of enactment. States and local governments may not prohibit employers from using E-Verify to verify the employment eligibility of new hires or current employers. 

The Legal Workforce Act, H.R. 2885

HR2885 was introduced by Congressman Lamar Smith and has 53 cosponsors. The bill passed out of the House Judiciary Committee by 22-13 on September 22, 2011 and was referred to the House Ways and Means Committee and House Education and Workforce Committees. 

This act would mandate an employment eligibility verification system for all U.S. employers for new hires, phased in over two years after enactment.  Businesses with more than 10,000 employees must use E-Verify within six months of enactment; for business with 500-9,999 employees, within 12 months; for 20-499 employees, within 18 months; and for 1-19 employees, within 24 months.  It exempts seasonal agricultural workers who return to work for previous agricultural employers.   Employers must use E-Verify for newly-hired seasonal agricultural workers three years after enactment.  

The bill would require mandatory re-verification of employment within six months of enactment for previously hired federal, state and local government employees, for critical infrastructure sites, and federal or state contractors.  An employer may choose to voluntarily verify the current workforce, but this must be applied to the entire workforce (not just individual employees.) Nonprofits and union halls who provide employment services would be required to use E-Verify to verify employees. 

The Legal Workforce Act would preempt state and local laws, including criminal or civil penalties related to hiring, continued employment, or immigration status verification for unauthorized immigrant workers. States and localities may continue to use business licensing and similar laws to penalize employers for not using E-Verify.

Penalties:  Current civil penalties for the first violation are $250-$2,000 for each unauthorized worker; for the second, $2,000 -$5,000 per worker; for the third, $3,000- $10,000 per worker. In the Legal Workforce Act, the first violation penalty would increase to $2,500-$5,000 per worker; the second violation, $5,000 -$10,000 per worker, and the third, $10,000- $25,000 per worker. Jail time for any offense could consist of not less than one year and not more than 15 years in prison. Fines for knowingly hiring or employing unauthorized workers may be waived if the employer establishes that it was a first time violation and the employer acted in good faith. If an employer used E-verify properly and relied on the government's information in good faith, the employer is relieved of most liability. 

Achieving Accountability Through Electronic Verification Act, S. 1196 

On June 14, 2011, Senator Grassley introduced S.1196, the Achieving Accountability Through Electronic Verification Act, with ten co-sponsors. This act would make E-Verify a permanent and mandatory verification system for all U.S. employers within one year of enactment. The requirement is phased in over a two year period depending on the size of the employer. “Critical employers” (as designated by DHS as critical to homeland security or national security needs) must use E-Verify within 30 days of the Secretary’s designation.   

Employers must re-verify existing employees within three years of enactment.  

An employer is allowed to use E- verify before an employee is hired, upon consent from the employee. If employers do not check an employee before s/he is hired, an employer has three days to verify the employee. If an employee’s eligibility to work expires, an employer has three days to re-verify after the date of expiration. 

States and local governments may not prohibit employers from using E-Verify to verify the employment eligibility of new hires or current employers. 

Employers are not liable under any federal, state, or local law for the wrongful termination of employees due to good faith reliance on the results provided by E-Verify. 

Penalties:  Employers who knowingly hire or recruit unauthorized workers or fail to use E-Verify are subjected to civil fines: for the first violation, $2,500-$5,000 for each unauthorized worker; for the second violation, $5,000-$10,000 per worker; and for the third violation, $10,000-$25,000 per worker. The Act increases the civil fines for paperwork violations, ranging from $100 to $1,000 for each individual. The criminal fine for each illegal worker cannot be more than $15,000. Fines for knowingly hiring or employing unauthorized workers may be waived if the employer establishes that it was the first violation and the employer acted in good faith. 

Contact:

Ann Morse, NCSL Immigrant Policy Project
www.ncsl.org/programs/immig
November 7, 2011