‘Chairman’s E-Verify Bill’ A Giant Increase Over States-Only Approach In Moving Illegal Aliens Out Of U.S. Jobs

Ever since the U.S. Supreme Court ruled in favor of Arizona’s mandatory E-Verify law, we at NumbersUSA have heard a modest but steady stream of comments from people questioning if it wouldn’t be better to skip having a national E-Verify law and stick with state laws to push illegal aliens out of U.S. jobs.

Certainly, we have to acknowledge that we would not right now have the possibility of a national E-Verify law passing if it weren’t for the valiant efforts of many state legislators across the nation who — often with the help of attorney, and now Kansas Secretary of State, Kris Kobach — fought tirelessly and tenaciously for years to pass E-Verify laws in states while Congress fiddled.

But the goal has always been to use state efforts to force Congress to act nationally.

After all, does anybody believe that the state governments in California, Illinois, New York and a number of other virtual sanctuary states will ever require E-Verify? The only hope for people in those states, which not coincidentally have the largest populations of illegal aliens, is a national law.

Now that U.S. House Judiciary Chairman Lamar Smith has introduced his national E-Verify bill (today), let’s try to pin down the real comparisons between what it would do and what state laws are doing (and are likely to do) over the first two years.

THE OVERALL GREAT IMPACT OF THE CHAIRMAN’S NATIONAL E-VERIFY BILL (The ‘Legal Workforce Act’)

Let’s start with what is fantastic about the bill — H.R. 2164, the ‘Legal Workforce Act’ — in terms of new hires.

E-Verify For New Hires:

99% of all hirings for U.S. jobs of any kind would have to be run through E-Verify within 2 years.

(Only 6 states come close to this requirement.)

(44 states don’t require E-Verify for any private employers of any size unless they have government contracts.)

After 2 years, even employers of just ONE worker will have to use E-Verify, getting at the day laborers and other parts of the underground economy.

(Only 4 states have laws as good as this — 46 states don’t.)

100% of all state, county and city hirings would have to be run through E-Verify within 6 MONTHS.

(Current state laws affect an estimated 30% of state employee hirings nationwide and 12% of local government hirings.)

100% of all hirings by state government private contractors would have to be run through E-Verify within 6 MONTHS.

(That compares with around 25% of all state contractor hirings nationally under current state laws.)

Would make into law the very good executive action that Pres. Obama took in 2009 mandating E-Verify for all federal contractors (added to all federal employees).

NOTE: The percentages I am using for nationwide compliance under current state laws are based on very rough calculations since nobody keeps an exact count on these things. What we did was assume that jobs and hirings in each state are roughly proportionate to that state’s population size. We then added the populations of each state requiring each kind of E-Verify compliance and divided by the total U.S. population. When I say around 25% of state contractor hirings nationally are currently covered by state laws, that means states with 25% of the U.S. population have laws requiring it.

3-PRONG EFFORT TO REMOVE ALL ILLEGAL ALIENS WHO ALREADY HAVE JOBS

Some 8 million illegal aliens currently hold U.S. jobs. A lot of them change jobs every year and would get blocked from a new job by E-Verify for new hires. But unless we have a vigorous system of going after illegal aliens who stay in their current jobs, we would be creating a kind of semi-slavery system in which illegal aliens would never leave their current jobs and employers could treat them as virtual slaves.

That is why Chairman Smith’s bill is so important in its three-prong approach to finding virtually all illegal aliens holding payroll jobs and requiring them to be fired.

(States are prohibited by current federal law from requiring employers to deal with illegal aliens who are already on their payroll. )

No. 1:   Multiple-Workplace Notification — Going After Identity Thieves

(No state has a law that goes after illegal aliens who get jobs by stealing identities.)

E-Verify’s biggest weakness is that it fails to catch most illegal aliens who have paid big money to steal identities of U.S. citizens and other legal workers.

This provision in Lamar Smith’s bill goes beyond E-Verify to close this loophole and catch perhaps the worst of the illegal workers, while alerting citizens so they can recover their stolen identities.

The bill:

requires the Social Security Administration once a year to identify all matching Social Security numbers and names that are being used at multiple workplaces (some are used at dozens and even hundreds of workplaces).
creates a system for the real owner of the name and SS number to contact SSA and establish ownership and where that person actually works.
requires SSA to notify all employers (other than of the true owner of the name) for a process that will result in the firing of the workers falsely using that name and SS number (although experience suggests that most of those illegal aliens will stop showing up for work once they get the notification letter from SSA).

No. 2:   No-Match Notification — Going After Fictitious Identities

(No state has a law that achieves any comparable effect.)

The bill requires SSA’s computers to identify every payroll worker who is using:

a SS number that doesn’t exist
a SS number that doesn’t match the name in the system
a number that isn’t a SS number
other irregularities involving the SS number and information about that worker

After giving those workers a few days to straighten out any errors about them in the system, the employer is required to fire the ones who can’t do so (in other words, fire the illegal aliens and also legal visitors who don’t have the right to work).

No. 3:   Ensuring that Foreign Workers Who Lose Their Right to Work Cannot Continue Working Anyway

(No state has a law that achieves any comparable effect.)

The bill requires SSA to essentially deactivate the SS number of an alien whose visa expires, or who is deported or required to leave the United States, so that number cannot continue to be used to gain employment. The bill also requires DHS to notify employers of temporary workers when those workers’ visas are about to expire, so the employer knows they must re-run those workers through E-Verify if they plan to continue their employment, thus ensuring that those whose work authorization has been extended may continue working, but others will be terminated.

BEEFING UP ENFORCEMENT OF FEDERAL LAWS AGAINST EMPLOYING ILLEGAL ALIENS 

Chairman Smith’s bill would impose big increases in penalties for businesses that continue to hire illegal aliens.

up to $25,000 fine per illegal worker
minimum prison sentences of one-year for offending employers

THE COMPROMISES IN THE CHAIRMAN’S NATIONAL E-VERIFY BILL

Obviously from the above, you can see that most of H.R. 2164 is fantastic.

But when I said yesterday that Rep. Smith’s bill is the “most important” E-Verify legislation ever, I did not mean that it is the “best ever.”

Mr. Smith’s bill is “most important” because it has a real chance of getting through House, Senate and the White House and becoming law THIS YEAR. It has a chance because it isn’t the “best” and instead involves some compromises to remove some key opposition that could keep it from reaching the finish line.

It is always critical to remember that a perfect bill that does NOT become law helps nobody.

H.R. 2164 does have a couple of major compromises that were necessary to turn the extremely powerful business lobbies from aggressive opponents into supporters of the legislation.

Would the country be better off with this “compromise” national legislation or with no national legislation and the need to continue to rely on state laws?

Some people have already suggested that since groups like the U.S. Chamber of Commerce are supporting this bill that the bill must be a bad bill and favor illegal workers — after all, the Chamber was in the forefront of pushing for amnesties during the Bush presidency.

But the Chamber now has a rational self interest in a mandatory verification law because its members now want a uniform set of rules across the country instead of what could become a patchwork of hundreds of local and state laws.

Whatever one may think about the motives or past behavior of those business lobbies, all those tough, sweeping, wonderful enforcement measures described above are real. Many of the lobbyists are saying that they don’t like all of those measures but that they accepted them as part of a compromise for their support.

And what did they require in return?

Those are the two major deficiencies in the bill.

Agricultural Worker Delays & Loopholes:

This is the 1% that didn’t make it into the two-year mandate of E-Verify for all new hires.

While all other jobs are phased in between six and 24 months, agricultural employers get an extra 12 months (3 years total) before having to run seasonal new hires through E-Verify. They still, however, have to abide by the two-year mandate based on the size of their company for all regular new hires.

I don’t have much of a problem with the extra year. But a bigger loophole is a problem: the bill basically allows illegal farmworkers who return to a previous farm employer to avoid E-Verify indefinitely, as long as they continue to work for the same employer.

This relates to much less than one-half of 1% of the nation’s jobs, but it ought to be fixed by amendment when H.R. 2164 comes to the House floor.

Restricting Ability of States and Localities to Enforce Employment Laws:

Considerably more consequential is a provision in H.R. 2164 that would “pre-empt” most state laws about employment of illegal aliens.

This pre-emption is NOT about state laws dealing with illegal immigration enforcement outside of employment issues.

And the bill WOULD allow states to revoke the business licenses of employers who refuse to participate in the E-Verify program. Thus, if a federal Administration fails to sufficiently punish employers who don’t obey the requirement to use E-Verify, states could step in and punish by pulling business licenses.

However, H.R. 2164 would not allow states to levy penalties for employers cheating the E-Verify system by continuing to hire illegal aliens while officially enrolled in E-Verify. Punishment in this kind of case would be reserved to the federal government.

Led by state legislators of states and localities with the strictest laws, there is a move affoot to try to generate opposition to the entire bill because of this section.

There is great skepticism about the likelihood of a federal government truly enforcing the E-Verify laws, given the weak enforcement of the last 10 U.S. Presidents.

Those who are the most mistrustful tend to feel that only aggressive states will be able to force the feds to obey the law.

NumbersUSA understands that concern, but the history of E-Verify leads us to believe that this law will be different. The fact is that over a quarter of a million employers have already chosen to use E-Verify voluntarily, with another 1,300 joining each week. Once all employers are required to use it, we believe that the vast majority of employers will, because they actually want to obey the law, especially if it is easy.

STATES THAT LOSE — STATES THAT GAIN

We had a conference call today with some of our leading activists in the states. I explained the issue about federal pre-emption of state laws.

Activists from Oregon and Ohio responded that they don’t have mandatory E-Verify and are unlikely in the future to have it. “This is not a tough choice for us,” one of them said. “A national law is the only way we are going to have E-Verify to get at the illegal workers.”

Without a federal mandate, illegal aliens in tough-enforcement states can just move to the states that don’t have enforcement. It is difficult to see how a states-only strategy could ever get us where we want to be.

Still, H.R. 2164 as written would reduce enforcement in some states.

Let’s see what the tally might look like if H.R. 2164 becomes law.

As for states being able to punish businesses for illegal immigration infractions beyond not participating in E-Verify . . . .

LOSE: 7 states (Alabama, Arizona, Georgia, Indiana, Missouri, Oklahoma and South Carolina) would lose because their current law allows them that kind of punishment, Kansas Sec. of State Kris Kobach told me this afternoon.
NOT LOSE: The other 43 states would NOT lose anything in this regard in terms of current laws (but would lose the option of passing that kind of law in the future).

35 States Would Gain Everything

These states without any E-Verify law of their own would be entirely net gainers with a national law in terms of:

comprehensive measures to go after illegal aliens currently holding jobs
mandate on hiring of state, county and city employees
mandate on hiring by state contractors
mandate on hiring by large and medium private employers
mandate on private employers of 1-15 workers
partial mandate on ag workers

The 35 states that would gain so much from the national H.R. 2164 are:

WEST: Alaska, Hawaii, California, Oregon, Washington, Nevada, New Mexico

GREAT PLAINS: Montana, Wyoming, South Dakota, North Dakota, Minnesota, Iowa, Kansas

SOUTH: Texas, Arkansas, Louisiana, Tennessee, Kentucky, West Virginia

GREAT LAKES: Wisconsin, Illinois, Michigan, Ohio, Pennsylvania, New York

NEW ENGLAND: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut

MID-ATLANTIC: New Jersey, Delaware, Maryland

9 States Would Gain Almost Everything & Lose Little

Colorado, Florida, Idaho, Indiana, Nebraska and Oklahoma would have a six-month pause in their E-Verify mandate on (a) state employees and (b) state contractors but would gain a law for everything else listed for the 35 states above.

Missouri would have a pause on those two categories and also on the mandate for employees of local governments — while gaining on everything else.

North Carolina and Virginia would have a pause only for the mandate on state employees and gain on everything else.

Probably most importantly, all 9 would benefit from the part of H.R. 2164 that goes after the hundreds of thousands of illegal aliens in their current jobs in those states.

6 States Would Delay In Several Categories But Gain Big In Current Hires

Georgia, Mississippi, South Carolina and Utah would have a six-month to 24-month delay in their mandate (a) on contractors with local governments, (b) on private employers and (c) on seasonal ag workers.

Alabama and Arizona would have the same delays but excluding contractors of local governments.

But without the national law, there would be no concerted, systematic effort to identify and fire the illegal aliens currently holding jobs in those states.

ROY BECK is Founder & CEO of NumbersUSA