FAIR Legislative Update September 26, 2011
In a 22-13 party-line vote, the House Judiciary Committee Wednesday passed legislation by Chairman Lamar Smith (R-TX) that would require all employers to use the E-Verify employment eligibility verification program. In addition to requiring all employers to use E-Verify, the legislation, entitled the “Legal Workforce Act” (H.R. 2885), makes several important changes including limiting the number of documents employers may accept to verify employment eligibility and increasing the penalties for employers who knowingly hire illegal aliens or fail to use E-Verify.
Members of the Committee offered a number of amendments to the bill during Wednesday’s markup, but accepted only two prior to passing the bill. The first amendment passed by the Committee, offered by Chairman Smith, was a minor change in order to return a provision of the bill to how it appeared in its previous version, H.R. 2164. Smith’s amendment would require employers to attest that they have verified the employment eligibility of an individual within the three-day verification period—which begins on the date an employer extends an offer of employment—rather than on the date of hire. (H.R. 2885 at §2; see Smith Amdt. #1; see also Roll Call Vote #1)
The other amendment passed by the Committee, offered by Rep. Howard Berman (D-CA), struck a provision of the bill in an effort to undermine support for the bill by the agriculture industry. (See Berman Amdt. #1; see also Roll Call Vote #4) The provision— a loophole for agricultural employers—would have modified and codified current regulations by providing that individuals engaged in seasonal agricultural employment returning to work for a previous employer are not considered new hires and thus not subject to verification through E-Verify. (H.R. 2885 at §2; 8 C.F.R. 274A.2(b)(1)(viii)(A)(8)) By striking this provision, the Committee closed a loophole that would have made it easier for illegal agricultural workers to slip through the new E-Verify mandate.
Among the rejected amendments was one authored by Rep. Howard Berman (D-CA) to strike the bill’s preemption provision barring state and local governments from enforcing immigration laws against employers (Section 6). (See Lofgren Amdt. #22, see also Roll Call Vote #6) By attempting to delete the preemption provision, Democrats this time tried to undermine the support of the U.S. Chamber of Commerce—support that is deemed key to the bill’s passage on the House floor.
Under Section 6, the only conduct of employers that state and local governments may punish through the revocation of a business license is failure to use E-Verify when and as required. This alone voids the portion of the U.S. Supreme Court’s ruling in Chamber of Commerce v. Whiting allowing states to revoke business licenses of employers who knowingly hire illegal aliens. (See FAIR Legislative Update, May 31, 2011) However, even with respect to states that wish to strip business licenses from employers that fail to use E-Verify when and as required, the language is ambiguous about who has the authority to determine whether the employer has actually complied with the program. If challenged, a court could plausibly interpret Section 6 to mean that state and local governments could only revoke the business license of an employer AFTER the federal government makes that determination. Such an interpretation seems even more likely when Section 6 is read in conjunction with Section 5. Section 5 provides that if an employer establishes that it has used E-Verify in good faith, it will be deemed to have met the requirements of the law unless the Department of Homeland Security proves by clear and convincing evidence that the employer knew the employee was an illegal alien.
Another amendment to the E-Verify bill that the Judiciary Committee rejected was Rep. Dan Lungren’s (R-CA) amendment to create a new agricultural guest worker program. Rep. Lungren and numerous other Members from agricultural states have made it clear that their support for mandatory E-Verify is contingent on the House also passing a sweeping new agricultural guest worker program. According to Lungren, E-Verify “won’t come to the House floor unless [agricultural workers] are taken care of.” (National Journal, Sept. 21, 2011) Rep. Lungren’s amendment to the E-Verify bill consisted of the same agricultural guest worker bill he introduced earlier this month, H.R. 2895. (See FAIR Legislative Update, Sept. 19, 2011) Lungren intended his bill to be an alternative to the agricultural guest worker program Rep. Smith proposed in H.R. 2847. (See FAIR Legislative Update, Sept. 12, 2011) The House Judiciary Committee was scheduled to mark up Rep. Smith’s agricultural guest worker proposal the same day as the mandatory E-Verify, but postponed consideration of the bill until October.
The House Homeland Security Committee last week marked up several pieces of legislation intended to help protect America’s borders. The committee, chaired by Rep. Peter King (R-NY), passed a total of six bills which evidenced “bipartisan agreement and highlights our shared goal of improving security while enhancing coordination and facilitation between [Department of Homeland Security (DHS)], other agencies, and the public,” King said.
The first bill passed by the Homeland Security Committee was the Secure Border Act of 2011, H.R. 1299, introduced by Rep. Candice Miller (R-MI), Chairwoman of the Subcommittee on Border and Maritime Security. The Secure Border Act requires DHS to gain operational control of the international borders within five years and directs the Department of Homeland Security (DHS) to submit a plan to achieve this goal to Congress within 180 days of enactment. Under the bill, DHS’s plan must take into account staffing requirements; investment in infrastructure, including pedestrian fencing, vehicle barriers, roads; the use of unmanned aerial vehicles, camera technology, and a justification and rationale for other technology choices; and cooperative agreements with international, state, local, tribal, and other federal law enforcement agencies that have jurisdiction. H.R. 1299 also requires DHS to secure the border at both ports of entry and between ports of entry and directs Customs and Border Protection (CBP) to submit its resource allocation and staffing plans to Congress to ensure the needs of CBP are met.
Speaking in support of the bill, Rep. Miller highlighted a recent Government Accountability Office (GAO) report which revealed that the U.S. Border Patrol has only 44 percent of the Southern border and 2 percent of the Northern border under operational control. ‘Operational control’ is defined in Rep. Miller’s bill to concur with the meaning given to it in the Secure Fence Act of 2006 as the “prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” She also noted that DHS has yet to produce its proposed new index for measuring border security, but that to prepare for the possibility of such an index, Rep. Miller’s bill allows for a new standard of border security evaluation. Should a new index be introduced by DHS, H.R. 1299 requires the Department of Energy national laboratory to evaluate its efficacy to double-check that it is a “suitable and statistically valid” standard.
The second bill passed by the Homeland Security Committee was the Jaime Zapata Border Enforcement Security Task Force Act (H.R. 915), sponsored by Rep. Henry Cuellar (D-TX). The bill is named after ICE Agent Jaime Zapata, who was brutally gunned down earlier this year while working in Mexico. (See FAIR Legislative Update, Feb. 22, 2011) H.R. 915 provides a statutory framework for the existing Border Enforcement Security Task Force (BEST) program. BEST teams incorporate personnel from ICE, CBP, the Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATFE), the Federal Bureau of Investigation (FBI), the United States Coast Guard (USCG), and the U.S. Attorney’s Office (USAO) along with state and local law enforcement agencies to increase information sharing and collaborative efforts to secure the border. H.R. 915 authorizes Homeland Security to establish BEST units, directs the assignment of federal personnel to the program, and imposes additional requirements to ensure the federal government assists state and local law enforcement in a unified effort to protect the United States.
The bills will now move forward for a vote by the full House of Representatives.