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  by  Roy Beck

Hundreds of state legislators across the country this winter are trying to put their unemployed residents back to work by passing mandatory E-Verify laws. Their main obstacle is business lobbyists claiming such laws would "burden" employers, and that federal courts might overturn the laws.

As you help these E-Verify efforts in your states, please read NumbersUSA's legal brief below on why the business lobbyists are wrong.

Click here to see our map showing all the states that require E-Verify in one form or another -- and all the states that have legislation pending.

We regard these state E-Verify battles as among the most important this year as ways to put millions of unemployed Americans back to work by opening up many of the 7 million jobs now held by illegal aliens in construction, service, manufacturing and transportation.

It is important to remember that:

  • Arizona's mandatory E-Verify law was upheld by the federal District Court that first heard it.
  • It was also upheld by the federal Court of Appeals.
  • But the Supreme Court agreed to review the findings after the Obama Administration joined the Chamber of Commerce in trying to kill the Arizona E-Verify law. We are awaiting a Supreme Court ruling.
  • One-quarter of all new hires are now having to go through E-Verify. If several more states pass mandatory laws, we can approach half of all new hires, at which point we can hope that national business organizations will decide it is better to have a uniform mandatory E-Verify law for the whole nation and stop blocking it in the U.S. Congress.

Below is the the part of the amicus brief we filed with the U.S. Supreme Court that deals with one of the business lobbies' chief contentions for stopping ALL states from requiring E-Verify.

I have interspersed my own comments in this typography. You can pick up the overall thrust of the legal arguments by reading all the sentences I have highlighted in red. But I provide all of the argument, as well as the footnotes, for those of you who find yourselves arguing with elected officials, their staff and journalists.

-- Roy Beck, Founder & CEO of NumbersUSA



(Section II of Amicus filed by NumbersUSA in U.S. Supreme Court) Petitioners contend that Arizona’s law requiring use of the federal E-Verify employment authorization system is “impliedly preempted.”

When you see "Petitioners" used, that refers to the U.S. Chamber of Commerce which sued to overturn Arizona's mandatory E-Verify law.

The courts below rejected this argument, noting that Congress could, but did not, provide for an express preemption of state laws requiring participation in E-Verify. Chicanos Por La Causa, Inc., 558 F.3d at 866-67. The Ninth Circuit noted that the existence of the savings clause demonstrates that Congress did not intend to foreclose participation in E-Verify, and the legislative history indicates that Congress was instead intending to encourage use of the system. Id. at 867.

In other words, if Congress had intended to prevent states from passing E-Verify laws, it wouldn't have provided an exception for when they could actually do so. See my blog earlier this month about the exception that allows states to use business licenses as a way to require employers to use E-Verify.

The Petition (although not explained in terms of governing precedent) apparently intended this as a conflict preemption claim. Petitioners’ Br., at 51 (“conflicts with the language, structure, and intent of federal immigration law”).

Conflict preemption occurs when either “compliance with both federal and state regulations is a physical impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). “[O]ur task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63 (2002). To meet the conflict preemption requirements the state law must mirror the federal objectives (stopping employment of unauthorized aliens) AND should further a legitimate state goal (protecting the economy of the state) BUT may not obstruct the original Congressional intent.

With what congressional intent do the Arizona laws interfere?

Here Petitioners suggest that Congress intended to “avoid imposing serious burdens on employers.” (Petitioners’ Br., at 48.)

Other than “erroneous tentative nonconfirmations” of authorizations to work for certain foreign-born persons, Petitioners do not offer any specific reasons why they feel a mandatory E-Verify program would be burdensome to employers. No specific reason was offered at trial.

This assertion of conflict, then, is about employer burden.

In denying a preliminary injunction early in the case, the District Court expressly rejected Petitioner’s “employer burden” argument. (Ariz. Contractors Ass’n v. Napolitano, Nos. CV07-1355-PHX-NVW, CV07-1684-PHX-NVW, Dec. 21, 2007, 2007 WL 4570303, at *6-7.)

Petitioners’ theory that Congressional intent was to avoid a burden on business is also inconsistent with the history of E-Verify and the reality of E-Verify.

Contrary to Petitioners’ theory, the mandatory system was not intended to “burden” employers. It was intended to help them.

Petitioners begin their history of E-Verify with the 1996 legislation, rather than looking at the entire history of federal consideration of electronic employment authorization verification systems. The full legislative history of E-Verify, in fact, shows exactly the opposite of Petitioners’ theory: Congress felt that a mandatory electronic verification system would both be less burdensome to employers and less likely to give rise to discriminatory conduct.

E-Verify, in its earliest form, was promoted as a telephone-based verification system for Social Security numbers, similar to that used by merchants to verify credit card transactions. (See, e.g., Exec. Order 12781 (Nov. 20, 1981) (authorizing INS to conduct alternative employment verification programs).

NumbersUSA has always argued that our priority of mandating E-Verify use for every employer and for every employee is because we are PRO-business. The fact that surveys find that businesses that use E-Verify overwhelmingly give it high marks shows that we are favoring law-abiding, civic-responsibility businesses by wanting to mandate it for all.

During the 1984 debate over H.R. 1510, an earlier version of IRCA, the House of Representatives adopted Cong. Sam Hall’s amendment to require a mandatory telephone employment authorization verification system. 130 Cong. Rec. H 5651-5658 (June 12, 1984). Cong. Hall’s system was based on credit card verification systems of the time. (Id., at H5651, H5654.)

Hall was an avowed opponent of “employer sanctions.” 130 Cong. Rec. H5651 (Statement of Cong. Sam Hall). He believed a mandatory system of employment authorization verification would help, not burden, employers: “A call-in system such as I propose in this amendment, however, relieves employers of a verification role.” Id. Other opponents agreed: “it is my understanding that the sole purpose of this amendment is to protect the employer.” Id., at H5656 (Statement of Cong. Roybal).

In addition, the mandatory telephone verification system was viewed by opponents of employer sanctions as an important anti-discrimination measure. “I think what the gentleman from Texas [Cong. Hall] is offering is a way to verify the legal right to work without discrimination, and it removes the onus from the employer.” Id., at H5655-56 (Statement of Cong. Martinez). Proponents of the bill agreed. Id., at H5657-58 (Statement of Cong. John McCain) (“such a system would remove any possible incentive an employer had to discriminate against potential employees.”).

Another of our arguments for mandatory E-Verify has always been that it REMOVES discrimination possibilities. If you have to run it on every single employee, it doesn't matter what you look like, talk like or seem like. It is just as difficult for a white, English-speaking illegal alien from Canada to get a job through E-Verify as it is for a dark-skinned, broken-English-speaking LEGAL immigrant from Mexico to be turned down for a job through E-Verify.

The Senate, however, which had been more skeptical of the need for anti-discrimination measures,1 rejected the Hall mandatory verification amendment. Instead the Senate adopted Sen. Lawton Chiles’ amendment providing for a study of a computerized verification system. 130 Cong. Rec. S11448 (Sept. 13, 1985) (Amdt. 609) (statements of Sens. Simpson and Simon). Then the Senate adopted Sen. Patrick Moynihan’s amendment of a similar study of a computer-readable and employer-verifiable Social Security card. Id., at S. 11450 (Amdt 610).

The statements of IRCA’s chief architect, Senator Simpson, confirm that equal application to all employers was the most important anti-discrimination provision. Responding to concerns that repeat violators will never “hire anybody again who looks foreign,” Simpson stated:

"We are asking here for the citizens of America and noncitizens and those who are authorized to work to present a document…[The document requirement] says you are legal to work and that document is not intrusive…It is presented at the time of new hire employment and it is presented by people who “look foreign” and by bald Anglo skinny guys like me, too. Anything else and you would truly have discrimination. That is the issue. I have been through that one plenty of times, and it is extraordinary to me to think that the issue of employers being the policemen of the country, that one went out the window a long time ago. If we do not ask employers of America to handle our withholding tax, who would?...We have penalties against those employers who choose not to do that. That is what we are talking about." (132 Cong. Rec. 33223 (1986); see also H.R. Rep. No. 99-682(I), at 45-46.)

Nothing in the debates on this change indicated any concern that a mandatory system would impose “serious burdens on employers.” Petitioners’ Br., at 48.

The major reason for dropping the mandatory verification requirement passed by the House and instead requiring only a study was the projected cost. “To implement such a system without knowing whether it would work would be expensive. A study would clarify that.” (Id., at S 11448 (Statement of Sen. Simpson).

The legislative history, coupled with the express preemption analysis in the courts below, suggests that Congress was not concerned about mandatory E-Verify “imposing serious burdens on employers.” Petitioners’ Br., at 48. There is no evidence that requiring use of E-Verify would obstruct congressional intent to stop the hiring of unauthorized aliens. There is no “clear and manifest” evidence that Congress intended to preempt any state-level attempts to require the use of E-Verify.

Even if there were such a Congressional intent, the facts show that E-Verify is anything but a burden. Rather it potentially replaces the more burdensome mandatory paper I-9 system. The E-Verify system is an effective and uniform means of combating unauthorized hires, thus furthering the intent of Congress. More than 216,000 employers are enrolled in the free E-Verify program, with over 8.7 million queries run through the system in fiscal year 2009.2 There have been over 13 million queries run through the system in fiscal year 2010 (as of July 31, 2010). Id. The expansive database of over 455 million records in the Social Security Administration database provided by the government allows employers greater ability to ensure that their hires are authorized to work in the United States. Id.

An evaluation of the E-Verify system during 2008 found that 96% of all E-Verify cases received a correct initial finding.3 Of all E-Verify queries in 2008, only 3.3% returned a false positive for an unauthorized worker, mainly due to the difficulties in detecting unauthorized aliens who used identity theft in order to obtain a job.4

Our amicus statement notes that E-Verify is not yet able to detect all illegal aliens. But that certainly is not a burden on business. It just means that using it would keep prevent the hiring of most of the illegal aliens who now are able to hold jobs and keep them out of the hands of unemployed Americans and legal immigrants.

While issues remain in the effectiveness of E-Verify to detect all unauthorized aliens who use identity theft or documents of authorized workers in order to get a job, the traditional paper I-9 system alone is far less reliable in detecting these attempts. Without E-Verify, the likelihood of employers detecting fraudulent documents varies on a wide variety of factors including the quality of the documents, the employers’ familiarity with immigration and other documents, and their expertise in detecting fraudulent documents. (Findings of the E-Verify Evaluation Program, note 8, at 131.) The E-Verify system adds an extra step and cross references these documents with information in the SSA database to determine the veracity. Id. As a result, the E-Verify system detects nearly all unauthorized aliens who attempt to use counterfeit documents or make false claims in their job applications.5

In order to address the identity theft issue, the government is working to improve the E-Verify system so that it can be more effective in catching unauthorized workers who try to gain employment through identity theft. The E-Verify program includes a Photo Tool that allows employers to view photographs in the database of workers presenting USCIS-issued permanent residence (“green”) cards and employment authorization documents. Thus, the employer can view the photo that is on file with these documents and compare them to the documents offered by the applicant. (Westat Evaluation of the E-Verify Program: USCIS Synopsis of Key Findings and Program Implications, note 9, at 7 (“Westat Findings”). By matching photograph in the E-Verify program with the identification the worker presents, the employer can confirm that the document has not been altered. This feature has vetted over 300,000 photos with employers and detected more than 1,000 instances of fraudulent immigration documents. Id. This year, USCIS is adding visa photographs to the database and is working with states to include driver’s license photographs as well. (Id. at 8.) As the system continues to improve, it will be harder for unauthorized workers to cheat the system.

The level of burden to those businesses using the more accurate E-Verify pales in comparison to the burden to businesses using I-9 with its low level of accuracy. One of the greatest “burdens” on businesses occurs when unauthorized workers have been found in their workplaces. Even if the businesses avoid the penalties for hiring unauthorized workers, the cost to the business due to the disruption of the workplace and the retraining of new hires is far greater. In the face of these costs the temptation to avoid employing all persons who appear to be immigrants is great.

Which brings us to a real burden: the burden to workers who are discriminated against because employers know the I-9 paper documentation is not a reliable system.

It is clear that the E-Verify system helps prevent employer discrimination of potential hires. E-Verify allows employers to simply enter information that is provided by the potential hire’s I-9 forms into the E-Verification, where it is cross-referenced against the government’s vast database to verify the legality of the hire. (E-Verify, note 7.) The online system removes any biases or prejudicial notions a reviewing employer may hold against a potential hire by taking the verification process out of their hands. The database does not care about ethnicity, appearance or accent of a potential hire, it merely evaluates whether the individuals paperwork is in order. That takes the discretion, and thus the opportunity for discrimination, out of the process. This is exactly what Congress intended in 1983, when it considered the effect of an electronic verification system. 130 Cong. Rec. H5651 (Statement of Cong. Hall).

In addition, DHS will report to the DOJ instances where there is evidence an employer used E-verify for discriminatory purposes.6 Furthermore, 17% of businesses stated that they were more likely to hire foreign born workers after implementing E-Verify, as opposed to only 2% of businesses who had a decreased willingness to hire foreign born workers after implementing the system. (Westat Findings, Note 8, at 206.)

E-Verify also provides for the rights of the applicant to challenge the findings of the E-Verify system.7 If an applicant’s paperwork is not consistent, the USCIS will ask the employer to verify the information to rule out human error. If human error is ruled out, then a tentative nonconfirmation finding (TNC) will be issued. Id. Employers must allow workers time to contact Social Security or DHS to cure any problems with the workers’ records. Id. Employers who act against a worker earlier can be fined by the Department of Justice for a civil rights violation.8

The more E-Verify is used, the more effective the system will become. “As it becomes harder to obtain fraudulent documents that will not be detected by E-Verify, the cost of such documents will presumably increase. Therefore, an important deterrent value of the Program ultimately may be to increase the cost of obtaining unauthorized employment, which, in turn, would cause some reduction in unauthorized employment.” Westat Findings, Note 8, at 141. The study also noted that there is evidence for unauthorized aliens to avoid employers who use E-Verify out of a fear of being identified as an unauthorized worker. Id. Therefore the more businesses that use E-Verify, the more of a deterrent it will become to prevent unauthorized hires. Arizona’s decision to require businesses to use E-Verify will fulfill the intent of Congress to reduce unauthorized labor.

It appears that Petitioners have misjudged what was Congressional intent in making E-Verify voluntary. Employers can comply with E-Verify, and Congress seemed to want them to do so. The Arizona law is not preempted.

1 “The Committee does not believe that such discrimination will occur.” S. Rep. 99-132, at 9.

2 Dept. of Homeland Security, E-Verify, (last visited Oct. 26, 2010).

3 Westat, Findings of the E-Verify Evaluation Program, at xxx (Dec. 2009)

4 United States Citizenship and Immigration Servs., Westat Evaluation of the E-Verify Program: USCIS Synopsis of Key Findings and Program Implications 6 (Jan. 28, 2010)

5 James Edwards, E-Verify, Setting the Record Straight,

/content/learn/enforcement/workplace-verification/e-verify-setting-record-straight.html (last visited Oct. 26, 2010) (noting that of the 6.2% of cases involving unauthorized workers, approximately half were falsely given work authorization due to the use of documents in identity theft).

6 U.S. Citizenship and Immigration Servs., DHS Unveils Initiatives to Enhance E-Verify,

/?vgnextoid=70beadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (last visited Oct. 26, 2010).

7 U.S. Citizenship and Immigration Servs., Resolving a Tenative Nonconfirmation, (last visited Oct. 26, 2010).

8 U.S. Citizenship and Immigration Servs., Reporting Violations, (last visited Oct. 26, 2010).

Updated: Thu, Jan 27th 2011 @ 10:01am EST

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