Employment Law Daily House bill would make E-Verify mandatory
Wednesday, September 13, 2017

House bill would make E-Verify mandatory

By Pamela Wolf, J.D.

On September 8, Representatives Lamar Smith (R-Texas), Bob Goodlatte (R-Va.), and Ken Calvert (R-Calif.) introduced the Legal Workforce Act, which they say is aimed at preserving jobs for citizens and legal workers by requiring U.S. employers to check the work eligibility of all future hires through the E-Verify system.

E-Verify checks the Social Security numbers of newly hired employees against Social Security Administration and Department of Homeland Security records to help ensure that they are genuinely eligible to work in the United States. Although the E-Verify system was initially criticized for what some considered unacceptable error rates, it reportedly has improved over time.

Phase-in plan. The bill, H.R.3711, would phase in mandatory E-Verify participation for new hires in six-month increments beginning on the date of enactment:

  • Businesses with more than 10,000 employees would have to comply within six months;
  • Businesses with 500 to 9,999 employees would need to comply within 12 months;
  • Businesses with 20 to 499 employees would have to comply within 18 months;
  • Businesses with 1 to 19 employees would need to comply within 24 months; and
  • Employees performing “agricultural labor or services” would be subject to an E-Verify check within 30 months.

The bill would permit businesses a one-time, six-month extension of the initial phase-in.

Other provisions. According to its sponsors’ fact sheet, the Legal Workforce Act would also:

  • Repeal the current paper-based I-9 system and replace it with a completely electronic work eligibility check, but employers could choose to continue using the paper-based I-9 system.
  • In addition to new hires, permit employers to use E-Verify to check the work eligibility of current employees as long as they do so in a nondiscriminatory manner and of all employees who are in the same geographic location or in the same job category.
  • Preempt duplicative state laws mandating E-Verify use while still giving states prominent roles in enforcing the law. Specifically, the bill retains the ability of states and localities to condition business licenses on the requirement that the employer use E-Verify in good faith under federal law. The bill allows states to enforce the federal E-Verify requirement and incentivizes them to do so by letting them keep the fines they recover from employers who violate the law.
  • Permits individuals to lock their Social Security number so that it can’t be used by another person to get a job, and allows parents or legal guardians to lock the SSN of their minor child. If a SSN shows a pattern of unusual multiple use, DHS is required to lock the SSN and alert the owner that their personal information may have been compromised.
  • Grants employers safe harbor from prosecution if they use the E-Verify program in good faith, and through no fault of their own, receive an incorrect eligibility confirmation.
  • Raises penalties on employers that knowingly hire illegal immigrants in violation of the bill’s requirements and also creates a penalty for individuals (employees or employers) who knowingly submit false information to the E-Verify system.
  • Requires DHS to conduct at least two pilot programs aimed at using technology within the E-Verify system to help further prevent identity theft in the system.

“Nearly 20 million Americans are unemployed or underemployed,” Smith said in a statement. “Meanwhile, seven million people are working in the United States illegally. By expanding the E-Verify system to all U.S. employers, this bill will ensure that jobs only go to legal workers.”

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