House Committee Approves Mandatory E-Verify

Last week, the House Judiciary Committee approved by a vote of 20-10 the Legal Workforce Act (HR 3711). This bill, which was introduced by Congressman Lamar Smith (R-TX), House Judiciary Committee Chairman Bob Goodlatte (R-VA), and Congressman Ken Calvert (R-CA), would require employers to check the work eligibility of all future hires through the E-Verify system. Administered by the U.S. Citizenship and Immigration Services (USCIS), E-Verify checks the social security numbers of newly hired employees against Social Security Administration and Department of Homeland Security records to confirm work eligibility.

HR 3711 would do the following:

  • Repeal the current paper-based I-9 requirement and replace it with an electronic work eligibility check. Provides some allowances for employers to use the paper-based I-9 system.
  • Phase-in mandatory E-Verify use for new hires according to the following schedule:
    • Within six months of enactment, businesses having more than 10,000 employees are required to use E-Verify;
    • Within 12 months of enactment, businesses having 500 to 9,999 employees are required to use E-Verify;
    • Within 18 Eighteen months after enactment, businesses having 20 to 499 employees must use E-Verify;
    • Within 24 months after enactment, businesses having 1 to 19 employees must use E-Verify.
    • Employees performing “agricultural labor or services” would be subject to an E-Verify check within 18 months of the date of enactment.
    • The bill provides for a one-time six-month extension of the initial phase-in.
  • In addition to new hires, the bill allows employers to use E-Verify to check the work eligibility of their current employees as long as they do so in a nondiscriminatory manner and of all employees who are in the same geographic location or in the same job category.
  • Preempt duplicative state laws mandating E-Verify use, but retains the ability of states and localities to condition business licenses on the requirement that the employer use E-Verify.
  • Incentivizes state E-Verify enforcement by allowing states to keep any fees they recover from employers who violate the law.
  • Grant employers safe harbor from prosecution if they use the E-Verify program in good faith, and through no fault of their own, receive an incorrect eligibility confirmation.
  • Raise penalties on employers who knowingly hire illegal immigrants and create a penalty for individuals (employees or employers) who knowingly submit false information to the E-Verify system.
  • Require DHS to conduct at least two pilot programs aimed at using technology within the E-Verify system to help further prevent identity theft in the system. It would also allow individuals to “lock” their Social Security number to ensure that others do not fraudulently use it.

In addition to HR  3711, the Judiciary Committee passed Chairman Goodlatte’s Guestworker (AG) Act (HR 4092).  The bill would replace the H-2A guestworker program with a new H-2C program and allow currently undocumented agricultural workers to legally participate in the program. For additional information, contact Paul Mendelsohn.