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Immigration Returns to the Spotlight

May 14, 2011

The President's speech last week revived talk of immigration reform. If Congress acts this year, will E-Verify legislation trump comprehensive reform?

Miltner photo   CopyBy Ryan Miltner, attorney
On Wednesday, May 11, President Obama gave a significant policy speech addressing comprehensive immigration reform. Almost immediately, the political spin on the speech was that the President was attempting to curry favor with Hispanic voters--a constituency he needs to win by significant margins to be re-elected.
While the President stressed that the broader economy stood to benefit from immigration reform, the Reuters article summarizing the speech noted that “he offered no concrete policy initiatives or timelines for introducing broad legislation, underscoring the fact that he is unlikely to advance any major overhaul before the 2012 presidential election.” 
Assuming that is the case, it means that legislation that is considered by Congress will likely be limited to bills addressing the use of the E-Verify system or less comprehensive measures, such as the DREAM Act, which failed to pass in the last Congress.
ImmigrationWorks, USA, a national organization of state business coalitions advancing comprehensive immigration reform hosted a national conference call earlier this month to discuss the political climate on immigration reform in Congress, and to discuss some of the changes to the E-Verify system that might be proposed in this Congress. 
The prediction of the presenter on the ImmigrationWorks call was that Congress will act upon legislation to make E-Verify use mandatory this year. The continuing obstacles to a comprehensive immigration reform bill are the perception that border security and employer responsibility for hiring need to be improved before other immigration issues are considered. Mandatory use of E-Verify would address the second of those two obstacles. Currently, use of the E-Verify system is mandatory only for certain federal contractors, and in states such as Arizona, where state laws require its use. Use by other employers is optional.
While Republican leadership in the House does not have comprehensive reform on its agenda, Lamar Smith, Chair of House Judiciary Committee, likes the idea of increased and eventual mandatory E-Verify use.  Meanwhile, on the Senate side, Democratic leadership is more open to a comprehensive reform package, with E-Verify as a component of comprehensive legislation. 
While early versions of the E-Verify database were error prone, with eligible workers being reported as ineligible at unacceptable rates, technological and database improvements have improved the system, according to statements from the U.S. Customs and Immigration Service (CIS). According to US-CIS, 98.3% of E-Verify cases run in the last fiscal year were immediately verified, which is up from 70% five or so years ago. 
Improvements aside, the details of any E-Verify bill will be critically important. If made mandatory, employers will want safe harbor protection for employing persons verified by the system, and protection from liability from errors with the E-Verify database, as well as clear and defined guidance on how to resolve conflict between employees not verified by the system but who maintain that they are eligible to be employed. 
If the predictions of forthcoming E-Verify legislation are correct, look for initial action to begin in the House of Representatives. Then sit back and wait for the real politicking to begin as the calls for Senate passage come. Many Senators will try to move more comprehensive reforms, while the backers of E-Verify will only attempt to tack the E-Verify measures onto other “must pass” bills. 
Ryan Miltner is an agricultural and estate planning lawyer in private practice. His agricultural practice is focused on dairy policy and the economic regulation of the dairy industry. The opinions in this article are his own observations prepared for Dairy Today and do not necessarily reflect the opinions of any of his clients. Contact him at


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