E-Verify
The most valuable tool for curtailing illegal immigration
In 1986, the Immigration Reform and Control Act (IRCA) was signed into law. Hiring unauthorized workers was clearly made illegal under IRCA, which also required employers to verify the identity and work authorization of all new employees. This led to the I9 form that everyone fills out when they apply for a job.
Because employers had little means to validate the identification provided by a new employee, the E-Verify program was created a decade later. E-Verify is a free system for employers to use that attempts to match the provided I9 information with other federal databases to determine if the employee is authorized to work in the US.
The federal government does not require non-federal employers to use E-Verify, but many State governments have sought to require participation in E-Verify. The chart below summarizes the State efforts and shows significant diversity in State E-Verify laws.
There are 4 main components to E-Verify legislation and legislation may be soft or strong depending on how it addresses these four components. The components are:
Coverage - this defines which employers must use E-Verify as part of their new hire procedures. Some States require all businesses to comply, some may have thresholds on number of employees, some only require it if it is a State contract, and then about half the States do not have any E-Verify law at all.
Penalties - it doesn’t matter how strict the coverage piece of the legislation is, if the penalties for non-compliance are minor or very difficult to prove, that makes the entire legislation weak.
Exclusions - while the coverage provides the primary guidance on who is required to participate in E-Verify, there are often exclusions made and it is in this language that vague exclusions may provide a broad umbrella for employers to avoid using E-Verify.
Triggering - the penalties for violating E-Verify law can be very strict but it is all moot if violations are never pursued. Laws vary on how an investigation may be initiated. It can range from a single official making the call to any individual being able to file a complaint.
Summary of State E-Verify Programs
Below is a chart of current state implementations for E-Verify. The colors are as follows:
Green: Strong controls
Yellow: Some controls but can be circumvented
Red: No program in place
A few notes on the above:
If the State is not green on the coverage, then nothing else can be green because it won’t apply to all employers. One exception is Pennsylvania’s enforcement, which is actually quite strong, just limited in who it applies to. The second exception is Utah’s exclusions, which do not exist, however, there is also no real enforcement of the Utah E-Verify program.
Several States have additional legislation pending that could make E-Verify required for all employers, including South Dakota, Nebraska, Texas and West Virginia.
The Arizona ‘loophole’ is that employers are not allowed to ‘knowingly’ hire independent contractors who are unauthorized, however, they are not required to obtain an affidavit by the contractor or any other documentation to prove their legal status (23-212A).
Effectiveness of E-Verify
Arizona was the first state in the nation to require E-Verify for all employers. A study of the effect of Arizona’s program by Westat in December of 2009 showed a 17% drop in the illegal immigrant population. Keep in mind that E-Verify only impacts new hires so it takes time for the results of the program to be seen.
A later study showed a 50% drop in new alien arrivals attributed to adoption of the E-Verify program. It is noted that it only works as a deterrent if all employers are mandated to use the program.
This study also concluded that E-Verify was the most effective tool for States to adopt to curtail the use of unauthorized workers.
Despite the data, questions about effectiveness are still claimed. The libertarian Cato Institute is critical of E-Verify and they prefer expanding visa programs instead to legalize what is now illegal. In this article from Politico, they make several allegations about the weaknesses of E-Verify, including:
Detection failures
Identity theft (also a failure of detection)
Lack of use or lack of enforcement
No employer arrests
Let’s address each one specifically:
Detection failures. They argued from anecdotal evidence, citing an ICE raid in Mississippi in 2019 uncovering hundreds of illegal workers. They argue that if E-Verify was effective, there would be no need for the raid to occur. E-Verify will not stop 100% of illegal workers, but the study cited above showed it does have an impact. This seems a text book example of ‘perfect being the enemy of the good’. Don’t implement E-Verify if it cannot stop 100% of illegal workers? E-Verify also gives States a tool to do something about the issue when the federal government does nothing. And lastly, per the chart above, Mississippi could tighten its enforcement statutes to further deter employers from avoiding its use of the system.
Identity theft. It is true that E-Verify will not flag a worker with a valid stolen identity. Once again, their argument is to abolish a program that is not perfect rather than recognize it does have a profound impact. And bear in mind that identity theft is a crime punishable at the State level just as if the employee had committed murder, robbery, rape, etc… Improvements to the process can also increase effectiveness. For example, E-Verify now has a ‘self lock’ option where you can lock your own SSN from being used unless you specifically unlock it when applying for a job. This is something parents can do for their children as well.
Lack of use/enforcement. This begs the question, if the program is really ineffective, why be concerned with lack of use or enforcement? Why is it that the strongest opponents of E-Verify (agriculture, construction and hospitality industries) are fighting so hard to stop it if they can so easily circumvent it?
No employer arrests. Agreed, however, federal law prohibits States from doing much more than revoking business licenses. Criminal prosecution for hiring unauthorized workers is under federal jurisdiction and beyond the scope of State E-Verify programs.
Idaho Considers E-Verify
In Idaho, there is no current legal requirement to use E-Verify. What we do have is an Executive Order issued in 2009 requiring State agencies, contractors and sub-contractors to verify eligibility of employees.
Last session, an E-Verify bill was printed but did not get a hearing in the House State Affairs committee.
This session, two bills have been proposed so far, SB1247 by Senator Mark Harris and HB704 by Representative Jordan Redman. Both are structured similarly, but the details show quite a difference in how E-Verify is implemented.
SB1247 basically codifies what Idaho has now. There would be no change in any of the four areas in the chart above and the status quo on the hiring of illegals in Idaho will not change. HB704, however, expands coverage to all employers, would cause the ‘death penalty’ of business license loss for a 2nd offense, and provides any citizen a means to trigger an investigation by petitioning the Attorney General. The sole weak spot is that employers are not responsible for E-Verifying employees of sub-contractors or of independent contractors, though they can be liable if they knowingly hire such employees.
Call to Action
What you can do to help promote the adoption of E-Verify in Idaho:
Contact your legislators and urge them to vote for HB704 (successor to HB584) and against SB1247.
Visit our website for the latest information on illegal immigration reform efforts at www.idahoimmigrationwatch.org
Spread the word on social media and with friends, family and social groups
Thank you! This is excellent information.