That lawsuit challenged the Legal Arizona Workers Act, which requires all Arizona employers to participate in the federal E-Verify program or risk losing their state business license. It raised two still-lingering issues related to E-Verify. Can and should this “voluntary” federal program be made mandatory? And how does the accuracy of the E-Verify program bear on its acceptance and compelled use?
The E-Verify database requires that employers utilize a federal database of social security and other records to confirm the employment eligibility of newly hired employees. Congress initiated the E-Verify program as a voluntary pilot program in 1996. It remains a voluntary program for most employers. But laws like the Legal Arizona Workers Act have mandated its use in certain states. Federal contractors must use E-Verify in most instances. And some employers subject to immigration enforcement have been compelled to use the program for future hires.
In addition to verifying the identity and work eligibility using the familiar I-9 procedures required of all employers, users of the E-Verify system submit that information through the federal database. The employee’s information is compared with federal records to determine if the worker is legitimately eligible for employment. At least, that is the intent.
The U.S. Chamber of Commerce, along with other groups, argued that the Legal Arizona Workers Act was illegal because federal immigration laws prohibit states from mandating participation in E-Verify and imposing criminal and civil penalties for noncompliance. In 2011, the Supreme Court ultimately upheld the Arizona law. Although the Chamber of Commerce raised federal law supremacy as the principal basis for their challenge, an additional argument was subtly made throughout the proceedings. In simple terms, the E-Verify database is too error-prone to justify universal participation.
Once an employer enters information into the E-Verify database, a worker’s authorization is either confirmed or designated as a “tentative non-confirmation” (TNC). Workers receiving a TNC must either abandon employment or work with social security and their employer to resolve the TNC. If not resolved or challenged, the TNC converts to a “final non-confirmation” (FNC), and the worker must be terminated. At first blush, this might appear to be a logical and straightforward process. You would expect the database would correctly flag unauthorized workers and provide an avenue to resolve any problems. But the available data paints a more troubling picture.
When the Legal Arizona Workers Act took effect, about 10% of E-Verify FNC determinations were thought to be erroneous. That means one out of every 10 workers who lost their jobs actually should have been authorized. In a report commissioned by the U.S. Department of Homeland Security and released in 2009, that rate had dropped to 6.9% – an improvement but still troubling.
One dissenting opinion issued in the Supreme Court’s decision illustrates the magnitude of the problem. Citing a Government Accountability Office report, it was noted that, “If E-Verify were made mandatory nationwide, 164,000 newly hired workers each year would erroneously be adjudged ineligible to work because of name mismatches, as when the worker’s first or last name is incorrectly spelled in government databases or on identification documents.”
These false rejections might be less disturbing if E-Verify actually prevented unauthorized workers from obtaining employment, but that is not happening, either. A report by the Cato Institute released in 2019 estimates that more than 80% of unauthorized workers are able to pass through E-Verify’s check. (This could be for any number of reasons, including the use of actual names and social security numbers of other people by unauthorized workers).
Data does indicate that the accuracy of the E-Verify program is improving. But the number of authorized workers subject to FNC determinations could reach as high as 86,000 annually, based on a separate Cato Institute study. And in most states, E-Verify participation remains voluntary.
The effectiveness of E-Verify will become all the more critical if the Farm Workforce Modernization Act (FWMA), which the House of Representatives passed last December, becomes law. The FWMA, which resulted from extensive negotiations and discussions among groups representing farm employers and farmworker advocates, includes provisions that would substantially shift the landscape for E-Verify participation. Of the 228 pages of the bill, roughly 50 are devoted exclusively to revamping E-Verify and extending its reach to agricultural employers.
The FWMA would establish an electronic employment-verification system patterned on E-Verify. The new system will be required to maximize its user-friendliness and, more importantly, “maximize the accuracy of responses to inquiries submitted by persons or entities.” The system would also improve the reporting process for notifications of confirmation and non-confirmation. The intent of these provisions is to create a better, more accurate E-Verify.
In addition to program improvements, FWMA would add agricultural employers to the list of obligatory users. The program will be made mandatory for agricultural employers over time, beginning with employers having more than 500 employees and eventually applying to all agricultural employers. Third, once the new system is operational, the current E-Verify program will be terminated, and employers that currently utilize E-Verify will transition to the new system. The FWMA also includes provisions to ensure that adequate funding will be allocated to the Social Security Administration to complete the development and operation of the new employment-verification system.
Finally, the FWMA seeks to avoid the accuracy problems of E-Verify by establishing mandatory reporting to Congress regarding the accuracy rates of the new electronic employment-verification system, challenges faced by both employers and employees in utilizing the system, an assessment of the implementation of the system by the agricultural sector specifically, and additional issues of oversight and operation.
Of course, only the House of Representatives has passed the FWMA. The Senate will likely take up the legislation in this calendar year. It is a near certainty that any Senate legislation will differ from the House language in degrees both large and small. For dairy producers who need both legal status for its existing workforce and authorized agricultural guest workers to meet future needs, participation in E-Verify has been viewed as the trade-off required to achieve these two critical objectives. Whatever the Senate ultimately includes in its agricultural immigration bill, these three key elements are a near necessity to garner sufficient support for passage. The exclusion of any one of them could scuttle the whole.
As for the proposed changes to E-Verify in the FWMA, assuming their inclusion in final enacted legislation, the promise of accuracy in employment verification will be a matter of execution. The current bill text appears to set out requirements that might sufficiently address the bulk of the problems of false non-confirmations. Similarly, providing authorized worker status to much of the currently undocumented dairy workforce would eliminate the need and incentive for unauthorized workers to utilize false documents to gain employment. In sum, the “new E-Verify” coupled with these logical agricultural worker reforms just might end this long legislative marathon – more than a decade after I finished my first half one.
- Miltner Reed LLC
- Email Ryan Miltner