E-Verify

Revised December 18, 2012

Abstract

E-Verify is a voluntary internet-based program to help employers verify the work authorization of new hires.  Since 2009, the federal government mandates certain federal contractors to use the program.  As of November 30, 2012, a total of 20 states require the use of E-Verify for at least some public and/or private employers.  This document summarizes 2012 state legislation, Congressional proposals, and the 2011 U.S. Supreme Court ruling upholding Arizona’s E-Verify law.

For NCSL’s E-Verify FAQ, click here.  The FAQ on E-Verify describes the federal employment verification program, how it works, its usage and capacity, how efficient it is, and its enforceability.

2012 State Action
 
In 2012, eight states enacted legislation related to E-Verify: Alabama, Georgia, Louisiana, Michigan, New Hampshire, Pennsylvania, South Carolina, and West Virginia. 
 
Three of these states now mandate E-Verify for at least some employers:  Michigan, Pennsylvania, and West Virginia.  Other states made technical changes to earlier laws, clarifying definitions, creating safe harbor provisions or establishing a hotline to report work authorization violations. 
 
As of November 30, 2012, a total of 20 states require the use of E-Verify for at least some public and/or private employers: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and West Virginia.  Eighteen of these requirements were through legislation and two, Florida and Idaho, by executive orders.  Two states, California and Illinois, currently limit the use of E-Verify.  Other states are exploring alternatives to E-Verify or identifying safe harbor provisions.  North Dakota is the only state to mandate a Legislative Management study on the feasibility of mandating the use of E-Verify. See the state chart below and state by state summary for more information. 
 

• Alabama amended its previous law passed in 2011.  HB658 requires contractors and subcontractors to use E-Verify, creates penalties for E-Verify violations, defines a business entity as a business employing one or more persons, and establishes that primary contractors are not liable for a subcontractors unless they are aware a violation.
• Georgia addressed E-Verify again, enacting two more laws in 2012.  The first (HB1027) expands the definition of a business enterprise in the entertainment industry to include affiliates registered for and authorized to use the E-Verify system.  The second (HB 742) appropriates $20,000 for reimbursements to the Immigration Enforcement Review Board for expenses related to enforcing E-Verify requirements.
• In Louisiana, HB996 clarifies the types of public works contracts required to use E-Verify to include, “the erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.”
• Michigan enacted new legislation, mandating the use of E-Verify by contractors and subcontractors of the transportation department for construction, maintenance, and engineering services (HB5365).
• New Hampshire’s law provides employers who use E-Verify an affirmative defense case (HB158).
• Pennsylvania’s new law requires public works contractors and subcontractors to verify employment eligibility through the E-Verify program, creates penalties for violations; and provides for good faith immunity for contractors and subcontractors who follow program procedures (SB637).
• South Carolina provides for a 24-hour hotline  to report E-Verify and other work authorization violations (HB4813)
• West Virginia enacted new legislation that requires new employees working on the grounds of the Capitol Complex to submit to an employment eligibility check through E-Verify (SB659). 
  For more detailed information on all state action regarding E-Verify, click here.

For more detailed information on all state action regarding E-Verify, click here.
For more on 2011 E-Verify laws, click here.


Congressional Proposals

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.  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.

For more details on these bills, click here.
 

The 2011 Supreme Court Ruling
 
On May 26, 2011, the U.S. Supreme Court upheld Arizona’s 2007 law that required the use of E-Verify by Arizona employers, punishable by suspension or revocation of the employer’s business license. The Immigration Reform and Control Act of 1986 (IRCA) preempts any state or local law from imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. Citation: 8 U.S.C. 1324a(h). The Supreme Court, by a 5-3 vote, found that language in IRCA did not preempt the state because it was a licensing law permissible under IRCA. The E-Verify program also did not preempt the state: “although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation.” The ruling on the case is “Chamber of Commerce of United States of America v. Whiting ( No. 09-115).”


Table: States Requiring E-Verify
 

• U.S. Citizenship and Immigration Services
• Westat, “Findings of the Web Basic Pilot Evaluation” September 2007
• GAO December 2010 report

Prepared by:
Allison Johnston, Fall Fellow, 2012 and
Ann Morse, Program Director
Immigrant Policy Project
National Conference of State Legislatures
202-624-5400
 
Contributors:
Brooke Meyers
Joy Segreto
Marie Lawrence
Dirk Hegen
Lee De Cleene
Jonathan Jakubowski