E-Verify in 2013: To Mandate or Not, That Is the Question

On the heels of a presidential inauguration, many U.S. employers are anticipating lots of change for 2013 particularly on the topic of immigration that will ultimately affect the U.S. workforce.  One topic that has been hotly debated in in the past is E-Verify, to which Congress has certainly not overlooked. Many of our readers are wondering if (and when) will E-Verify become nationally mandated.  For those who reside and work in states that have not (yet) mandated E-Verify, the more pressing questions is whether state (or municipal) E-Verify legislation will materialize this year alongside punitive measures, while Congress figures out what to do with E-Verify on a national scale.

State-Mandated E-Verify Legislation Galore?

The 2013 E-Verify landscape may not be so different from last year. Confidence in the U.S. Congress to quickly arrive on a compromise on legislation is low.  Even if E-Verify were included as part of a comprehensive immigration reform package, as hinted by President Obama recently, it would take months for the two houses of Congress to flush out a package that is approvable. In the meantime, States have somewhat of a roadmap on how to craft legislation that could withstand legal challenges.  In fact, Arizona vs. United States and Chamber of Commerce vs. Whiting (SB1070) provide legal precedents that states (and municipalities) can follow when crafting their own legislation.  We may even see states revisiting the issue of state-mandated E-Verify legislation even after prior failed attempts.  [More on this in a future blog article.] The sense of Federalism is indeed strong amongst states.  States (and municipalities) have an important stake in enacting legislation that protects and promotes the welfare of its residence as allowed by the 10th Amendment.  To that end, we may see more legislation that conforms to the guidelines carved out under precedent cases but still preserve a state’s ability to flex its “independent muscles.”

State Mandated E-Verify Legislation No More?

On the other hand though, some would say that state initiatives compelling employer enrollment in E-Verify may be a thing of the past.  While state and municipalities can pass legislation, the issue of enforcing the laws requires the use of highly limited resources for many jurisdictions. Arizona, for example, mandates all private employers enroll in E-Verify and imposes civil penalties upon violators.  Yet, to-date, reports indicate that compliance is very low.   Arizona isn’t alone.  The cost to enforce the laws requires reserving funds to pay for personnel to process paperwork and adjudicate violations. For some, the specter of mandatory E-Verify legislation on a national scale may well scare state legislators into inaction.  After all, if the federal government is spending more than $18 billion enforcing immigration laws, perhaps it’s better left to the federal government to continue its enforcement priorities. The debate rages on and only time will tell what will be required on a national level.  Until then, as we inch closer to comprehensive immigration reform, employers should take notice that E-Verify may well become a reality sooner than later.  Consult a qualified attorney to assist with your organizations’ E-Verify needs.

For more information about E-Verify software, visit LawLogix’ Guardian page for more details.