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Employment Verification 
 

Mandatory E-Verify Proposed in U.S. House of Representatives 
6/17/2011   
 
 

On June 15, the U.S. House Subcommittee on Immigration Policy and Enforcement held an important hearing on legislation to require nearly all U.S. employers to sign up and use the federal government’s employment verification system, E-Verify. The focus of the subcommittee hearing was H.R. 2164, a bill titled the Legal Workforce Act, which was introduced on June 14 by House Judiciary Chairman Lamar Smith (R-Texas). 

SHRM has strongly supported the establishment of a federal, electronic system that is effective, efficient and easy to use and that would replace the current paper-based I-9 verification form. In addition, we support the inclusion of a good-faith reliance standard for employers who would be required to use the system, and we believe employers should only be required to verify through the system the work eligibility of new hires, not current employees or those of their subcontractors.

For these reasons, SHRM is pleased that H.R. 2164 includes provisions that would:

  • Establish a fully electronic system—H.R. 2164 would eliminate the current paper-based Form I-9 process and replace it with a completely electronic work eligibility system.
  • Pre-empt state employment verification laws—H.R. 2164 would underscore that the federal government, not the states, is the appropriate entity to make and enforce immigration law in the workplace. But in line with the recent Supreme Court validation of a 2007 Arizona law, the bill would allow states to use “business licensing and similar laws” to penalize employers for not participating in E-Verify.
  • Create a safe harbor for employers—H.R. 2164 would provide employers a safe harbor from prosecution if they use E-Verify in good faith and, through no fault of their own, receive an incorrect notice of work authorization from the system.
  • Not require verification of existing employees—H.R. 2164 would require most employers to verify the work authorization of new hires only. Organizations would be required to reverify staff assigned to critical infrastructure sites (for example, power plants and bridges).
  • Phase in the mandate—H.R. 2164 would require most employers of various sizes to enroll in the E-Verify system according to the following timelines from the date the bill is signed into law:
    1. Employers with more than 10,000 employees must enroll in E-Verify within six months.
    2. Employers with more than 500 employees must enroll within a year.
    3. Employers with more than 20 employees must enroll within 18 months.
    4. Employers with fewer than 20 employees must enroll within two years.
    5. Agricultural employers must enroll within three years.

Witnesses at the hearing shared their perspectives on what mandating E-Verify would mean for employers, employees and the economy at a time of 9 percent unemployment. Barry Rutenberg of the National Association of Home Builders (NAHB), a member of the SHRM-led HR Initiative for a Legal Workforce, said “NAHB, and the employer community generally, has often expressed grave concerns about mandating the E-Verify program for all U.S. employers.” However, SHRM indicated in a June 15 letter to the House Judiciary Committee that the Society appreciates Chairman Smith’s introduction of a bill that would both pre-empt state employment verification laws and create a fully electronic verification system, replacing the I-9 form.

The legislation will likely be voted on by the full House Judiciary Committee in July.

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