Immigration Voyeurism: An Early Peek at Rep. Lamar Smith’s Mandatory E-Verify Bill

Editor’s Note: today’s blog is courtesy of Angelo Paparelli of Seyfarth Shaw LLP. The original blog posting can also be viewed here.

As early as last January, Rep. Lamar Smith, Chair of the House Judiciary Committee, outlined plans to hold hearings to investigate the Obama Administration’s policies on immigration-related worksite enforcement and propose a bill that would require employers to enroll in E-Verify, the Federal online screening tool that purports to verify work eligibility. True to his word, hearings on worksite enforcement and E-Verify have been held. And at last, a draft of a mandatory E-Verify bill, current as of June 8, is circulating on Capitol Hill.  Tentatively titled the “Legal Workforce Act” (LWA) and labeled a “Discussion Draft,” the proposal would profoundly change hiring processes in the United States, and introduce expensive compliance obligations on all employers.  It would also increase the burdens on federal and state courts and on public and private prisons by creating a host of new LWA criminal penalties involving sentences to run consecutively (read: longer incarceration periods). Curious readers can take an early peek at a few key provisions of Rep. Smith’s proposal:

  • Mandatory Use Phased in. Employers would be required to enroll and use E-Verify by a set deadline based on the number of current workers.  From the date LWA is enacted (if ever), E-Verify would be required within: 30 days for covered federal contractors; six months (for employers of 10,000 of more personnel); 12 months (for firms with 500 to 9,999 employees); 18 months (20 to 499 workers); two years (1 to 19 workers); and three years (for employers of farm workers).
  • E-Verify Use Only for New Hires. Except for federal vendors who must verify current employees assigned to a covered federal contract, the LWA will only apply to new hires.  Also, it will not apply to farm workers returning to a former employer.
  • No Preemption of AZ-style E-Verify Laws. LWA would permit the proliferation of state laws and local rules mandating E-Verify use as recently blessed by the Supreme Court in U.S. Chamber of Commerce v. Whiting: “A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system”.
  • Weakened Good Faith Compliance Defense.  The LWA enfeebles the Sonny Bono amendment, enacted in 1996, which gives employers 10 days to correct technical or procedural Form I-9 compliance failures after ICE points them out.  Although the Smith proposal would extend the curative period to 30 days, it would apply the defense only to compliance errors that are “de minimus.”  Good faith compliance would be available, however, for E-Verify queries that failed because the online system was unavailable at the time.
  • Criminal Penalties for false I-9 attestations and improper use of E-Verify.  Individuals would face criminal penalties of up to two years and fines for knowingly furnishing a social security number or DHS-approved ID or authorization number that does not belong to the person or submitting such a number in an E-Verify screening. Helpfully, however, the LWA waives a good faith first violation of the unlawful hiring rules.
  • Change in retention period. Employers would now be required to hold on to electronic or paper verification records for the later of five years from date of hire (currently it’s three years) or one year from date of termination.

Back in January, Rep. Smith characterized mandatory E-Verify usage as something of a no-brainer, or in business-speak as low-hanging fruit, suggesting that 70% of Americans would agree with his assertion.  Given the sweeping harshness of the LWA, however, U.S. employers, proponents of immigrant rights and the American people must do more than just talk about Rep. Smith’s “Discussion Draft.”  The fruity guantlet from the right has been hurled into the political arena.  It’s time to give it the Gallagher treatment