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Required E-Verify Use Moves Closer to Reality

Aug 22, 2011

The Supreme Court's decision to uphold Arizona’s E-Verify law has spurred more legislative proposals requiring employers to use the employee verification system.

Miltner photo   CopyBy Ryan Miltner, attorney
Given the Supreme Court's decision in Chamber of Commerce of the United States v. Whiting, which upheld Arizona’s law requiring employers to utilize E-Verify, proponents of the mandatory use of E-Verify have been emboldened.
Both at the federal and state level, legislatures are considering legislation requiring employers to use the federal database to verify employment eligibility of workers. In Congress, a bill has been introduced that would make E-Verify mandatory for all employers over a two-year period. The bill, H.R. 800, has secured 27 co-sponsors.
H.R. 800, entitled the Jobs Recovery by Ensuring a Legal American Workforce Act of 2011, would make E-Verify a permanent federal program. Federal contractors and subcontractors, along with employers of more than 250 people, would be required to use E-Verify one year after the act’s passage. Employers of more than 100 people would be required to use the program beginning 18 months after passage. All other employers would be required to utilize E-Verify two years after passage.
H.R. 800 would also require that E-Verify be used for all current employees. It requires the Department of Homeland Security to improve the operation of the E-Verify system and hire additional employees to administer the program.
A separate bill, H.R. 2000, entitled the Secure America through Verification and Enforcement Act of 2011 (SAVE Act) provides a framework for increased border security as well as mandatory E-Verify use. The SAVE Act also provides for phased-in mandatory compliance, over a four-year period. Neither the SAVE Act nor H.R. 800 would preempt state laws that prohibit the use of E-Verify. Neither bill provides any special treatment for agriculture.
However, as drafted, neither bill would restrict state laws that impose greater requirements or impose greater penalties upon employers. This issue of state law preemption is an important one for the employer community, as several states have taken it upon themselves to craft legislation aimed at the employment of illegal aliens given the Supreme Court's endorsement of similar laws in Arizona. Mississippi, South Carolina and Utah now also mandate E-Verify use, although Utah exempts employees with fewer than 15 employees. Other states impose the requirement on state contractors. Legislation is pending in Pennsylvania, Michigan and New Jersey.
So, will Congress act this year on mandatory E-Verify? Both H.R. 800 and the SAVE Act have been referred to committees, where they await action. Congress will return from the Labor Day recess on Sept. 5. On the agenda will be appropriations bills (the new fiscal year begins on Oct. 1), trade agreements awaiting action, job creation, a pending transportation bill, tax reform, and, of course, budget and debt issues.
This could leave little room for immigration, at least for this calendar year. However, when Congress does finally act on immigration, it certainly looks like mandatory E-Verify will be part of the package.

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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