How One New York Village Tackled the E-Verify Issue

[Editor’s Note: Today’s article is courtesy of Ms. L. Batya Schwartz Ehrens, an Immigration Attorney practicing in the state of New York. Ms. Ehrens’ expertise includes I-9 compliance and E-Verify, global mobility, and immigration advocacy.]

Once upon a time [1], in a little village called Suffern, in a little state called New York, lived a Deputy Mayor, a Mayor, and three Trustees [2]. Each month, the village leaders met to talk about the most important issues of the day – the annual Family Day celebration, kiddie pool parties, community concerts, fire station pool parties at the community pool, the local theater production, and “something called e-verify [sic],” which “enables a municipality to verify through their system by use of social security numbers that employees and employees of contractors in fact are legally employed.”  The village leaders discussed enrollment in the program, but were not “able to get any feedback from anybody else…using it.” One trustee said that she did not “know if there is a reason for that. Or just that we are going to be first and we have done that before and she kind of likes that because we find good things. She said she doesn’t know if anyone else has looked into it or has any more information on it.”  After discussing the cost of enrollment, the Deputy Mayor moved to authorize the Mayor to join the E-Verify program. The motion was supported by the two trustees present on the August meeting.

This is the story of how, on the 11TH day of the month of August in the year 2008, the village of Suffern, in the town of Ramapo, in the county of Rockland, in the state of New York, in the United States of America, became the first and only village in its state to require any employer contracting with the village of Suffern to verify that their employees have work authorization. The village leaders lived happily ever after, secure with the knowledge that they had made life better and more secure for all the people in the village of Suffern.

What Suffern Shows about E-Verify Decision Making

As an immigration attorney with an interest in worksite compliance, I have been following the developments of E-Verify closely for several years as the program expanded and evolved. E-Verify is now mandatory for all federal contractors. It is also mandatory in 19 states for all, or for specific types of, employers. Four states, including New York, now require E-Verify participation through specific local or municipal legislation, like the one in Suffern Village. The Department of Homeland Security (DHS) encourages employers to voluntarily enroll in the program by offering benefits such as STEM extensions (for graduates of Science, Technology, Engineering, or Math programs). E-Verify is clearly gaining traction on a steady basis, and more companies than ever are enrolled in the program, including voluntary enrollees.

The local motions are especially interesting because they reflect communal-level reactions to increased awareness or fear of worksite compliance violations (even without analyzing concrete data). The Suffern decision, as demonstrated by the empty discussion and vote made by three individuals, was supported by almost no factual data to confirm or undermine the decision, and failed to incorporate a full analysis of the economic and social risks and/or benefits. While E-Verify may be inevitable, and may be the right or required option for some employers, hasty decision-making ignores the potential consequences these choices have on employers, as well as on local, state, and federal economies.

Why is E-Verify an Issue for New York Employers?

Of the 1.2 million worksites using E-Verify across the U.S., in New York State, USCIS estimates that over 7,000 employers with a workforce between 500 to 999 are currently enrolled in the program, including 7 federal contractors. Enrollment in the program continues to grow, and everyone seems to agree that it is only a matter of time before all U.S. employers will be required to add E-Verify to their checklist for each new hire.

Before that happens, however, New York employers should be wary of the Suffern model of decision-making, and should evaluate the likelihood of a happy ending by route of E-Verify. While the ultimate goal of E-Verify is to ensure worksite compliance, the short term outcomes disproportionality affects states with higher numbers of both documented and undocumented immigrants in their workforce. In 2010, the U.S. Census Bureau estimated that nearly 1 in every 5 New Yorkers is an immigrant (over 22%). In 2010, the Pew Research Center estimated that of the total labor force of 9,742,000, undocumented workers in New York comprised 450,000.

Opponents of mandatory E-Verify warn that “cleansing” the workforce, without successfully establishing immigration reform solutions for undocumented immigrants and unauthorized employees will shock local economies dependent on the undocumented labor, affecting both tax revenues and unemployment. Others have criticized the program for overburdening employers, and for mismatches due to system glitches for those with valid authorization. Due to the high proportion of immigrant (both undocumented and documented) employees, New York employers are especially vulnerable to the potential human resource disasters that they may face if they are forced to enroll in E-Verify. Even for employers unlikely to discover unauthorized employees in their work force, enrollment in E-Verify poses additional legal liability as well as increased business costs.

The Outlook for New York Employers

As E-Verify enrollment increases, without a federally mandated E-Verify program, it is foreseeable that voluntary enrollment for larger companies in industries unlikely to be affected by mismatches; will continue to increase as the program gains popularity. However, New York’s smaller employers may be less eager to sign up for the program.

New York’s immigrant population has created one of the most entrepreneurial environments in the country. In addition to the most obvious industries subject to E-Verify complications (think agriculture or construction), smaller companies, including mom-and-pop operations, which survive on smaller budgets, are more likely to be negatively affected by E-Verify. For smaller operations without the resources to implement the program, or those with more potential violations, employers must face the reality that although E-Verify is not yet mandatory, most people agree it is only a matter of time before this trend becomes a new requirement.

Although most New York employers (this applies to other states as well!) are not required to enroll at this time, employers must not bury their heads in the sand with respect to worksite compliance issues. “After all, if you’re not ahead, you’re behind!”

In many ways, the issues that New York employers face are similar to those faced by employers across the country. However, the volume of immigrants, as well as type of business run by and dependent on immigrant employees, add additional layers of challenge more similar to states with large immigrant populations, and high rates of immigrant entrepreneurship. Although the villagers of Suffern lived happily ever after, the only way to ensure a real fairy tale ending is to prepare as best and as soon as possible for the inevitable mandatory E-Verify.

Tune in for What Employers Should Do While Waiting for Mandatory E-Verify later this week!

[1] August 11, 2008

[2] Present at August 11, 2008 village meeting: Deputy Mayor Dagan LaCorte, Trustee Andrew Haggerty, Trustee Patricia Abato; Absent: Mayor John Keegan, Trustee John Meehan

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Ms. L. Batya Schwartz Ehrens is a U.S. based immigration attorney. She has represented companies and individuals seeking to secure nonimmigrant visas and permanent residence and has taught business immigration law as an adjunct professor at the City University of New York (CUNY). She is a member of the American Immigration Lawyers Association (AILA) and is active on the Corporate Practice, Department of Labor, Advocacy, and Global Mobility committees. She has also served on the Board of Directors for the Hebrew Immigrant Aid Society. Ms. Schwartz Ehrens may be reached at batyaehrens@gmail.com.