In June 2011, House Judiciary Committee Chairman Lamar Smith (R-Texas) introduced the Legal Workforce Act (HR 2164), an E-Verify bill that requires all employers to use the employment verification system. The bill features a three-year phase-in with 99% of employers required to use the system within two years. The bill also requires all federal, state, and local agencies to run existing employees through E-Verify, and lifts the federal ban on private employers from running current employees through E-Verify.

Several common questions have come up in reference to the bill. Here are the answers to some of those common questions:

Existing Employees

Does HR 2164 do anything about existing employees?

Criticisms that the bill grandfathers in or amnesties illegal aliens currently working in the United States are false. The Legal Workforce Act actually includes six different tools that will identify illegal aliens already in the workforce and require that they be run through E-Verify and fired if not confirmed by the system.

  1. Ends the ban on running existing workers through E-Verify - Under current federal law, employers are forbidden from running current employees through E-Verify, but HR 2164 lifts that ban. Beginning 30 days after enactment, employers may choose voluntarily to run all current employees through E-Verify.
  2. Mandates running all existing federal, state and local government workers through E-Verify - While private employers aren't required to check current employees, public employers must check all employees within 6 months of enactment. Americans' tax dollars will no longer be used directly to employ illegal aliens.
  3. Requires private employers with federal and/or state contracts to check employees through E-Verify - Within 6 months of enactment, private employers must run their current employees performing work under a federal or state contract through E-Verify. Americans' tax dollars will no longer be used indirectly to employ illegal aliens.
  4. Targets illegal aliens using fake Social Security numbers - The Social Security Administration will be required to send "no-match" letters to employers when an employee is using a Social Security number that either doesn't exist or doesn't match the name or other identifying information of the employee. Employers are required to run these employees through E-Verify and fire them if they cannot correct the mismatch and receive a confirmation through the system.
  5. Targets visa overstayers and deported aliens with valid Social Security Numbers - The bill requires the Social Security Administration to lock the Social Security numbers issued to individuals with expired visas or who have been deported. If an illegal alien with a valid, but locked, Social Security number tries to get a job, he or she will receive a nonconfirmation.
  6. Identifies and fires identity thieves - The bill requires the Social Security Administration to contact owners of Social Security numbers that are receiving contributions from multiple employers. The notification instructs recipients to contact the Social Security fraud hotline if they believe their number is being used fraudulently (i.e., if they are not working for all the employers listed in the notification). Once the rightful owner is identified and confirmed, the Social Security Administration must then lock the Social Security number and contact the employers of the other workers using the stolen number. The employers are required to run the suspect employees through E-Verify, and since the Social Security number is locked, they will receive a nonconfirmation and will have to be fired by the employer. The bill also allows all Americans the option of voluntarily locking their own Social Security number.

New Hires

Does the bill drag out the rollout of the E-Verify mandate for new hires?

The Legal Workforce Act phases in E-Verify over a two-year period for 100% of employers. The phase-in periods for HR 2164 are as follows with the phase-in for the SAVE Act in parentheses:

  • Federal, state, and local employers = 6 months after enactment (12 months)
  • Employees of critical infrastructure who are subject to federal security clearance = 6 months after enactment (12 months)
  • Employees assigned to perform work under federal or state contract = 6 months after enactment (12 months)
  • Employers with 10,000 or more employees = 6 months after enactment (12 months)
  • Employers with 500-9,999 employees = 12 months after enactment (12 months)
  • Employers with 20-499 employees = 18 months after enactment (12 months for 250+; 24 months for 100-249; 36 months for 30-99; 48 months for 20-29)
  • Employers with 1-19 employees = 24 months after enactment (48 months)
  • Recruiting or referring firms = 12 months after enactment (compliance only required for those recruiting or referring for a fee, so not day labor sites or Union hiring halls)

Agricultural employers do not have to run employees performing agricultural labor through E-Verify until 36 months after enactment, but they have to run all other new hires through E-Verify according to the phase-in above, based on the size of the employer's non-agricultural workforce.

State Enforcement

Does the bill delay the deadlines for mandatory E-Verify in the 15 states that have passed E-Verify bills?

Only 5 states have passed laws that require all employers to use E-Verify for new hires: Arizona, Utah, Mississippi, South Carolina, and Alabama. The E-Verify mandates in Arizona, Utah, Mississippi, and South Carolina will be delayed, and whether Alabama's law will be delayed depends on when HR 2164 is enacted. The remaining state E-Verify mandates will also be delayed; however, these laws only cover state agencies and/or contractors. HR 2164 will cover 100% of employers within 2 years.

Does the bill forbid states and local governments from enforcing immigration laws?

The Legal Workforce Act does preempt state and local laws that relate to the employment of illegal aliens, including E-Verify mandates, but it does not prohibit states and localities from revoking the business licenses of employers that fail to comply with the federal E-Verify mandate, nor does it prohibit states and localities from enforcing other immigration laws. Arizona's infamous immigration enforcement law (SB1070) addresses the issues of legal presence, transporting and harboring illegal aliens, and sanctuary cities, none of which would be preempted by HR 2164. Alabama, Georgia, Indiana, and other states have passed similar legislation and only those parts of the laws that relate to the employment of illegal aliens would be preempted by HR 2164.

HR 2164 prohibits states and localities from setting their own timetables by which employers must use E-Verify, but still allows states and localities to use "business licensing and similar laws" to ensure that employers comply with the federal timetable established in the bill.

Does the bill's provision for states to pull business licenses for non-use of E-Verify depend upon a determination by the feds?

Under HR 2164, a state could revoke the business license (or charter or articles of incorporation) of any employer that cannot show that it has enrolled in E-Verify when required to do so under the timeline specified above, and no federal determination is required. A state could also revoke the business license of any employer found by the federal government to have knowingly employed an illegal alien or misused the E-Verify system (e.g., by not running all new hires through the system), but this would require a federal determination of a violation before the state could act.

Federal Enforcement

Since the 1986 law against hiring illegal aliens was hardly ever enforced, why should we believe the feds will enforce this law?

There's one major difference between the 1986 law and the Legal Workforce Act -- E-Verify. Even though the Immigration Control and Reform Act of 1986 strengthened penalties against employers who knowingly hire illegal aliens, enforcement is still dependent on the I-9 paper form, which means that Immigration and Customs Enforcement must physically go to the employer and audit the paperwork in order to find violations. The Legal Workforce Act replaces the I-9 form with an online system that sends all the relevant data directly to the Department of Homeland Security. In other words, HR 2164 actually requires employers to send proof of their compliance or non-compliance directly to the federal government.

Businesses that currently obey federal tax law will also obey HR 2164 because it's easier to use than the I-9 forms, and a "good-faith" clause in the bill protects businesses from future enforcement actions, as long as they can show that they use E-Verify in good faith. Because E-Verify relies on pre-existing computer technology, the federal government will easily be able to determine which companies are obeying the law and which ones aren't.

The Legal Workforce Act also dramatically increases fines levied on businesses that don't comply with the law, furthering the likelihood that businesses will comply, and giving DHS a financial incentive to track violations. Monetary penalties for a first offense increase from $250-$2,500 to $2,500-$5,000 per illegal alien or violation. Penalties for a second offense increase from $2,000-$5,000 to $5,000-$10,000 and for subsequent offenses from $3,000-$10,000 to $10,000-$25,000 per illegal alien or violation. Employers found to have engaged in a pattern or practice of non-compliance face no less than 1 year in prison and up to 10 years.

One part of federal immigration law that the Obama Administration has shown it has the will to enforce is penalizing employers who knowingly hire illegal aliens, even though it refuses to actually deport the illegal aliens. The Administration has audited 2,338 companies since October 1, 2010 for possible hiring violations, a vast increase over prior years. The E-Verify system required by HR 2164 would make it even easier--and more profitable--for the government to target employers that violate the law, since all the proof the government needs of a violation would already be in the government's hands. And even if the administration refuses to arrest the illegal workers, they would be forced to leave the country if they couldn't find another job to support themselves.

Does the bill have a giant loophole for agriculture?

The Legal Workforce Act provides 1 extra year for agricultural employers to run their new hires who perform agricultural labor through E-Verify, but less than 1% of the country's workers work in agriculture. According to the Pew Hispanic Research Center, only 4% of illegal aliens work in agriculture.

The bill does contain a loophole for illegal aliens who work seasonally in agriculture. The bill does not consider seasonal agricultural workers returning to work for an employer that previously employed them as new hires, meaning they will not have to be run through E-Verify. However, this loophole actually only provides a maximum three-year reprieve for agricultural employers of illegal aliens because those illegal aliens will be caught by one of the six tools listed in number 1 above that target currently working illegal aliens.

National mandatory E-Verify also prevents illegal aliens working temporary jobs in agricultural from eventually moving into construction jobs, service jobs, or other jobs that then allow illegal aliens to establish residency in the United States.