On Wednesday, April 17th, the Senate “Gang of Eight” introduced its comprehensive immigration reform legislation entitled, “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” Comprised of almost 900 pages of text, the immigration legislation presents a comprehensive approach that addresses the following elements:
• Increased funding for border security;
• A path to legal status for the estimated 11 million undocumented workers;
• Revise the H-2B program for temporary, foreign workers on a seasonal basis;
• Create a “W” visa for low-skilled workers; and
• Require all employers to use the E-Verify system to verify the legal status of prospective employees to work.

According to reports from ISSA's Director of Legislative Affairs Bill Balek, all employers would be required to use the E-Verify system over a 5-year phase-in period. Employers with more than 5,000 employees would be phased in within 2 years. Those with more than 500 employees would be phased in within 3 years. All employers would be phased in within 4 years.

As part of the system, every non-citizen would be required to show a “biometric work authorization card” or a “biometric green card.” E-Verify includes due process requirements that provide legal workers with recourse in the event E-Verify declares them as not authorized to work in the U.S. when in fact they are.

Presently, E-Verify is a voluntary, internet-based system that allows businesses to determine the legal status of their employees by comparing I-9 information with data made available by the Department of Homeland Security and the Social Security Administration.

Employers have historically been averse to being required to use E-Verify for this purpose because it has a track record for being unreliable. For example, a recent government audit revealed that 50 percent of new hires that were not authorized to work in the U.S. were approved as having legal status by E-Verify.

In addition, while there is no fee to use E-Verify, a recent study conducted by Bloomberg indicates that it would cost small businesses $2.6 billion to operate E-Verify related to employee training, staff time, and/or outsourcing.

Lastly, E-Verify has the potential to create liability for employers. E-Verify has a number of technical rules related to the use of E-Verify that could result in fines for employers if not followed. In addition, failure to hire workers who are flagged as unauthorized by E-Verify, but who are actually authorized, may create civil liability on the part of the employer for discrimination in hiring practices.