FAIR Legislative Update June 20, 2011
House Subcommittee Debates Mandatory E-Verify
The House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing last Wednesday to debate legislation that would mandate all employers use E-Verify. The bill, entitled “Legal Workforce Act,” H.R. 2164, is authored by House Judiciary Chairman Lamar Smith and is at this date co-sponsored by Reps. Bilbray, Blackburn, Calvert, Carter, Chaffetz, Franks, Gallegly, Goodlatte, Kingston, Lewis, Lungren, McCaul, Miller, Myrick, Royce and Sensenbrenner. (See Press Release, June 14, 2011; H.R.2164 Bill Status)
H.R. 2164 proposes the most extensive overhaul of the employment eligibility verification process since it was created in 1986. (INA 274A; 8 U.S.C. 1324a) The bill maintains the existing framework for the employment eligibility verification process (including the I-9), but also makes important changes, such as mandating E-Verify and increasing penalties for employers who knowingly hire illegal aliens or fail to use E-Verify. H.R.2164 also preempts states from imposing civil or criminal penalties on employers who knowingly hire illegal aliens or fail to use E-Verify. The bill does permit states to exercise their licensing authority to penalize employers for failure to use E-Verify. (For more details on the Legal Workforce Act, see FAIR’s legislative analysis.)
At the hearing, Subcommittee Chairman Elton Gallegly (R-CA) underscored the success of the E-Verify, which Congress initiated as a pilot program in 1996. (SeePress Release, June 15, 2011) Chairman Gallegly noted that almost 250,000 employers already successfully use the E-Verify program, and H.R. 2164 would serve to further employers’ interests. He stated that the bill would alleviate the burden on employers, because unlike current law it allows employers to make employment conditional upon certification of eligibility to work legally in this country. Under current law, an employer is prohibited from using E-Verify until after they have hired the employee, which could result in an employer investing time and money into training an employee, only to find out the individual is illegally in the U.S.
Ranking Subcommittee Member Zoe Lofgren (D-CA) flatly rejected H.R.2164 and the entire notion of mandatory E-Verify. She argued that mandatory E-Verify would grow the government, hurt the economy, cost the government $17 billion in lost tax revenues, and “decimate” the agriculture industry. Mandating E-Verify, she said, must be done with other reforms to the immigration system, including granting amnesty to the 12 million illegal aliens currently in the U.S. Doing it through H.R.2164, she said, is “economic suicide.” Lofgren disputed Chairman Smith’s claim that mandatory E-Verify would open up jobs for U.S. citizens, calling the argument one that “ignores the realities of our complex economy.” Employers, she argued, would not use E-Verify even if required by law and would instead simply take illegal aliens “off the books.”
Rep. Lamar Smith (R-TX), chairman of the full Judiciary Committee, then defended his E-Verify bill. He reminded the committee that “24 million Americans are unemployed or have given up looking for work,” and yet “7 million illegal aliens are working in the U.S. without authorization.” (Statement of Judiciary Committee Chairman, June 15, 2011) Smith described mandatory E-Verify as a common sense approach to tackling our broken immigration system. “You have to show your Social Security Number to visit the doctor, go to the bank, or buy a home,” he said. “It makes sense that businesses would use the same identification to ensure they have a legal workforce by checking the legal status of their employees.” (Id.) Not only is E-Verify effective and practical, he said, but it also has overwhelming public support, noting that a recent Rasmussen poll shows that 82 percent of likely voters believe businesses should be required to use it. (Statement of Judiciary Committee Chairman, June 15, 2011)
The committee also heard testimony from several witnesses. Congressman Ken Calvert (R-CA), the original sponsor of E-Verify in 1996 and a strong proponent of the program ever since, testified that the time had come to require all employers use E-Verify. “E-Verify,” he said, “is ready for mandatory use.” (Testimony, June 15, 2011) Calvert explained to the Subcommittee that only one percent of all employees checked through E-Verify contest the E-Verify result, and only half of them – 0.5 percent, he stressed—are successful in contesting that the government’s information is incorrect. (Id.) Representative Calvert also pointed out important provisions of the bill which help protect against identity theft by notifying employers of mismatched and multiple-use social security numbers.
Representatives from both the National Restaurant Association and the National Association of Home Builders also testified in favor of the bill. Mr. Craig Miller of the National Restaurant Association praised Rep. Smith for taking the concerns of the restaurant industry seriously in the shaping of the legislation, and although he offered suggestions to improve the bill, he said that the National Restaurant Association supported it. (Testimony, June 15, 2011) Mr. Barry Rutenberg of the National Association of Home Builders also testified in support of the bill. He said it was clear Americans want employers such as himself to step forward and be a part of the solution to the problem of illegal immigration. (Testimony, June 15, 2011)
The only witness who adamantly opposed the H.R.2164 was the Policy Director at the National Immigration Law Center (NILC), Ms. Tyler Moran. In her testimony, she largely echoed Rep. Lofgren, arguing that mandatory E-Verify would not create jobs, but cost American jobs and tax dollars. (Testimony, June 15, 2011) She called it a “fantasy” to think that illegal workers would leave the U.S. because of E-Verify and that they would simply move to an underground economy. Mandatory E-Verify alone, she argued, would not fix our broken immigration system, but said “[t]he critical starting point for any mandatory E-Verify proposal… is a path to legal status for undocumented immigrants.”
The House Judiciary Subcommittee on Immigration Policy and Enforcement is expected to mark up H.R.2164 sometime in July. Stay tuned for more developments on this legislation…
In an effort to stop the jobs magnet that encourages illegal immigration, Sen. Chuck Grassley (R-IA) this week introduced S. 1196, the “Accountability Through Electronic Verification Act”. The bill changes E-Verify from a temporary and voluntary verification program to being permanent and mandatory for all employers within one year from the date of enactment. (For complete details on the Accountability Through Electronic Verification Act, see FAIR’s legislative analysis.) “E-Verify has already proven effective in combating the hiring of illegal aliens. It’s a simple tool for employers who want to comply with the law in a digital age when sophisticated, fraudulent documents are just the stroke of a computer key away,” Grassley stated in a press release. (Sen. Grassley Press Release, June 14, 2011) “This legislation allows us to hold employers accountable while giving them the tools needed to abide by the law in their hiring practices.” (Id.)
In addition to making E-Verify permanent and mandatory, S. 1196 makes the following important reforms:
- Requires federal government entities and contractors to participate in E-Verify upon enactment (§3);
- Requires all employers to participate in E-Verify within one year (§3);
- Increases the civil fines for employers who knowingly hire, recruit, or refer illegal aliens, or who fail to use E-Verify as follows (§4):
- First Violation: Not less than $2,500 and not more than $5,000 for each illegal alien employed (current law: not less than $250 and not more than $2,000 for each illegal alien)
- Second Violation: Not less than $5,000 and not more than $10,000 for each illegal alien employed by an employer found to have violated the prohibition against knowingly hiring, recruiting, or referring an illegal once before (current law: not less than $2,000 and not more than $5,000)
- Subsequent Violations: Not less than $10,000 and not more than $25,000 for each illegal alien (current law: not less than $3,000 and not more than $10,000)
- Increases the criminal penalties for employers engaging in a pattern or practice of knowingly hiring, recruiting, and referring illegal aliens or who fail to use E-Verify by (§4):
- Increasing the criminal fine to not more than $15,000 for each illegal alien employed (current law: not more than $3,000 for each illegal alien); and
- Making a violation of such a felony (current law: not more than six months for the entire pattern or practice)
- Prohibits state and local governments from forbidding employers from using E-verify (§5);
- Expands the window of time during which employers may verify the employment eligibility of employees by permitting the verification of individuals before they are hired, recruited, or referred so long as the individual consents (§6);
- Requires employers to use E-Verify for any individual who has not been previously verified by the employer using the program (§6); and
- Clarifies that employers must terminate an employee following the receipt of a final nonconfirmation as to that employee’s work eligibility (§8).
Ten senators signed on as original co-sponsors of Sen. Grassley’s bill, including freshmen Mike Lee (R-UT) and Marco Rubio (R-FL). Sen. Rubio issued the following statement showing his commitment to true immigration reform the day the bill was introduced: “[W]e can’t be the only nation in the world that does not enforce its immigration laws. Consistently, I have stated that a modernization of the legal immigration system is impossible unless we must first secure the border and implement an E-Verify system that will help prevent the hiring and exploitation of undocumented workers. That’s why I support Senator Charles Grassley’s bill to make E-Verify permanent.” (Sen. Rubio Press Release, June 15, 2011)
Lynn Tramonte, deputy director of the pro-amnesty group America’s Voice, wasted no time criticizing Sen. Rubio for supporting the legislation. “The fact that Marco Rubio put his name on this bill shows that he just doesn’t get it. He is incapable of being a real bridge to the Latino community for the GOP.” (Politico, June 15, 2011; see also America’s Voice Blog, June 15, 2011) And Rep. Luis Gutierrez, one of the House’s biggest proponents of amnesty called Sen. Rubio’s position on immigration “extreme,” accusing him of being a hypocrite for not supporting amnesty because of his family’s Cuban ancestry. (Politico, June 15, 2011)
Other cosponsors of the bill include Sens. Jeff Sessions (R-AL), John Barrasso (R-WY), John Boozman (R-AR), Tom Coburn (R-OK), Bob Corker (R-TN), Orrin Hatch (R-UT), David Vitter (R-LA), and Roger Wicker (R-MS).
At its annual meeting in Phoenix, Arizona last week, the Southern Baptist Convention, the largest Protestant denomination in the country, passed a resolution supporting a “just and compassionate path to legal status” for illegal aliens living in the U.S. (Politico, June 17, 2011; see Southern Baptist Convention Resolution on Immigration, June 2011) Richard Land, president of the Convention’s Ethics and Religious Liberty Commission in Washington, described the move as “a really classic illustration of Gospel love and Gospel witness.” (NY Times, June 16, 2011)
The resolution states: “[W]e ask our governing authorities to implement, with the borders secured, a just and compassionate path to legal status, with appropriate restitutionary measures, for those undocumented immigrants already living in our country.” (Southern Baptist Convention Resolution on Immigration, June 2011) In an exercise of semantics, the resolution also reads that it should “not to be construed as support for amnesty for any undocumented immigrant.” (Id.)
The resolution comes at a time when several southern states have passed legislation to curb illegal immigration. Earlier this month Alabama Governor Robert Bentley signed into law HB 56, a measure that’s been referred to as the toughest immigration law in the country for addressing an array of immigration matters including employment, voting, education, and enforcement. (See FAIR Legislative Update, June 6, 2011) And, just last week, lawmakers in the North Carolina House of Representatives passed a bill requiring private employers with 25 or more employees, as well as public contractors, subcontractors, counties, municipalities and state agencies, to use E-Verify. (See FAIR Legislative Update, June 13, 2011)
Delegates at the Convention moved to strike the reference to a path to legal status for illegal aliens, but were defeated by a vote of 766 to 723. (NY Times, June 16, 2011)