Recently the Subcommittee on Immigration Policy and Enforcement of the U.S. House of Representatives Judiciary Committee debated H.R. 2164, a bill proposed by Texas Republican Rep. Lamar Smith which would mandate that all employers use the federal government's electronic E-Verify employee verification tool. H.R. 2164 would also increase penalties for knowingly hiring unauthorized foreign nationals. According to some observers, Smith's bill would have more impact on U.S. employers and their hiring practices than any bill since 1986's Immigration Reform and Control Act, which created the I-9 process.

During the subcommittee hearing, members of Congress and witnesses called before the subcommittee expressed a variety of perspectives on the bill. Rep. Smith, a longtime proponent of stricter immigration policy, noted that in some ways it can be easier to work illegally in the U.S. than to get medical care or do business with a bank, and that polling shows that Americans are overwhelmingly in favor of correcting this sort of fundamental absurdity in the U.S. immigration system. Subcommittee chairman Rep. Elton Gallegly argued that despite its added penalties, Rep. Smith's bill actually makes the employment verification process more fair for employers. This is because under H.R. 2164, employers would be permitted to make offers of employment contingent on clearance by E-Verify. Under current law, E-Verify can only be run after an employer is formally hired, leading to a number of complicated procedural and legal problems for employers when E-Verify cannot confirm that new employees are authorized to work.

Opponents of Smith's bill also spoke at the subcommittee hearing. Rep. Zoe Lofgren, the leading Democrat on the subcommittee, noted that mandating E-Verify does not address the fundamental reasons that employers hire unauthorized workers in the first place. Smith's bill, therefore, will serve no purpose other than to unnecessarily grow the government if it is not combined with measures designed to legalize the population of undocumented workers who can be exploited for "under the table" employment. Tyler Moran, the policy director at the National Immigration Law Center, agreed with Rep. Lofgren, stating that Smith's bill by itself would only serve to damage the U.S. economy by pushing illegal workers further underground.

With even prominent figures who generally oppose immigration to the U.S. split on H.R. 2164 due to issues they see with the bill's limitation of state and local authority over immigration, the future of this bill is unclear. However, all employers would do well to pay close attention to any changes proposed in the U.S. employment verification system in the coming months.

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Recently, the state of Alabama passed its own immigration law, which some are calling one of the toughest laws in the country. The law easily passed through the Alabama legislature, following a recent ruling by the U.S. Supreme Court that upheld Arizona’s law to impose sanctions against businesses that hire undocumented workers. The Legal Worker’s Act of 2007 requires a loss of business license and fines for companies that violate the law.

The new immigration law in Alabama also requires businesses to use the E-Verify system, also known as the I-9 system, to verify that job applicants can legally work in the U.S. Additionally, the law also states that transporting or harboring an illegal immigrant is a crime. Similar to the Arizona law passed in 2010,law enforcement personal are able to ask for documentation if they suspect a person is not of  legal status.

Opponents of the E-Verify system point out the challenging position in which employers are placed. Before verifying the legal status of job applicants, the employer must first offer the person a job. If the person is not eligible to work in the U.S., the employer is obligated to inform the person of their rights. If the person does not speak English, the employer must read the rights in the person’s native language. Failing to comply with the statue can result in fines and business closure.

A good resource that helps Alabama employers find qualified workers and follow the law is I-9Compliance.com, an integrated solution that can manage the complex system of I-9 compliance. This web-based solution is capable of streamlining the E-Verify process in one or multiple locations.

As a designated agent, I-9Compliance.com recommends that employers also trace the social security number of a prospective applicant, where legality is a concern. The social security number trace is typically part of the standard pre-employment background check. This might help to determine if the social security number is valid.

A valid trace indicates the employer can conduct the E-Verify process. Typically, the process for a social security trace is less time consuming and can prevent non-compliance with the Alabama law. An invalid return on the social security number eliminates the need for the employer to follow-up with the E-Verify system after making a job offer to an ineligible applicant.

I-9Compliance.com is a designated E-Verify agent. Using an integrated system with the Department of Homeland Security ensures real-time confirmation and compliance if there are any changes to the law. This system also notifies employers when the documentation for current workers expire, providing ongoing compliance.

A bill approved by the Tennessee Legislature and expected to be signed by the governor will strengthen incentives for Tennessee employers to use the federal "E-Verify" employee verification system to bar illegal immigrants from obtaining legal employment within the state. E-Verify is a Department of Homeland Security program available over the Internet and administered in tandem with the Social Security Administration. The Tennessee Lawful Employment Act (TLEA), which covers newly hired employees, will take effect January 1, 2012.

In addition to state and local governments and agencies within Tennessee, private-sector employers with more than 499 employees will fall immediately under the new provisions in January; companies with between 200 and 499 employees will be covered by July 1, 2012; and all businesses staffed by six or more employees will be covered beginning January 1, 2013. Employers with fewer than six employees are exempt.

Affected employers will be required to either choose the E-Verify system or to gather state-approved documentation from prospective workers. The documentation may include a current U.S. passport; state-issued driver's license or non-driver's identification card; official birth certificate; certificate of naturalization; permanent resident card; work authorization; or certain other forms of identification. The allowed documentation under the TLEA will differ from current I-9 verification requirements only in that copies of the documents must be retained by the employer. This document retention is not required by the federal Immigrant Reform and Control Act.

Consistent with the new legislation and with federal law, employers who opt into the E-Verify system must apply it without exception to all new hires; it will not be possible to alternate between verification methods. Employers lacking Internet access will be permitted to use the Tennessee Department of Labor and Workforce Development (DoLWD) as their agent for employee registration and verification. Limited "safe harbor" protections are available for employers who have opted for E-Verify.

A provision in the law empowers lawful residents of Tennessee or federal agents to file complaints at the DoLWD against allegedly infringing employers. Older provisions have authorized only local or state officials to file such complaints. The DoLWD will investigate credible claims that an employer has violated the law by hiring ineligible persons.

An employer failing to follow the law will be subject to a minimum penalty of $1,000 for a first offense, rising another $500 for each additional employee or non-employee over the first for whom the employer has neglected to collect and maintain satisfactory documentation; a second offense will incur a minimum penalty of $2,000, rising another $1,000 for each additional violation. A third offense will increase the minimum penalty to $5,000, with $2,500 more for each additional violation. A non-employee is defined as any individual paid by the employer for independent contractor services.

Under current law, employers found in violation might temporarily or permanently lose their business licenses, depending upon the number of offenses committed within a three-year period.

The U.S. Supreme Court recently upheld an Arizona law which found that states could require the use of the federal government's "E-Verify" employment verification system in issuing business licenses in that state. In a complex decision, a divided 5-3 Supreme Court found that Arizona's law did not impinge on the federal government's sovereignty over immigration because it focused the granting or denial of business licenses, an activity which has traditionally been the responsibility of state governments. As predicted by both proponents and opponents of the Arizona law, many states are already beginning to follow Arizona's lead now that the Supreme Court has ruled in that state's favor.

One state which will now be checking up on the immigration status of its workers due to this decision is South Carolina. Shortly after the Supreme Court ruled in the Arizona case, South Carolina governor Nikki Haley sent a letter to Homeland Security Secretary Janet Napolitano (incidentally, a former Arizona governor) asking why the Department of Homeland Security was still refusing to release data from the E-Verify system to South Carolina government officials. This data would be used to more efficiently enforce a state law passed in 2008 authorizing use of the state's licensing authority to penalize employers that knowingly employ illegal workers. The Department of Homeland Security eventually responded, saying that the "Memorandum of Understanding" that is required to be acknowledged by all E-Verify users now covers the release of E-Verify data to the state of South Carolina. Homeland Security's statement on the matter also includes a complicated chart detailing what data in the E-Verify system can be legally released by employers.

Many critics of the original Arizona bill warn that the Supreme Court's decision has now opened up the door for a "patchwork" of state immigration laws: in short, fifty separate nations, all with separate regulations for employing foreign national workers. With the South Carolina law, like the Arizona law, authorizing the state to revoke a business's license (otherwise known as the "business death penalty") for employers who are found to have flagrantly violated local restrictions on illegal workers, it is absolutely vital to understand the complexities of the agreement between the Department of Homeland Security and the State of South Carolina. Unfortunately, until the federal government steps in with action to comprehensively reform the U.S. immigration system, the best thing employers can do is seek the aid of qualified advisors in verification compliance to ensure that they are not in danger of receiving the "death penalty" for their own businesses.

I-9compliance.com’s provides an electronic compliance solution to help you with your I-9 forms, keeping you ready to respond to any I-9 request by the government at a moment's notice. Visit I-9compliance.com and get started today.

The E-Verify system used by the Department of Homeland Security to electronically verify employment eligibility for new employees. In the past, its use has been voluntary for federal employers; Arizona has now made it mandatory for all employers within the state. Additionally, an Executive Order now makes e-verify mandatory for all new federal employees, including federal contractors and their employees, although existing federal employees and federal contractors are not affected.

In a highly controversial piece of legislation, Arizona made it illegal for employers to “knowingly or intentionally employ unauthorized workers” by implementation of the Legal Arizona Workers Act (LAWA). Those employers who violate this new law may forfeit their business license or have it temporarily suspended, thereby making it impossible for them to conduct business within the state of Arizona.

When this legislation was enacted, several civil rights organizations as well as the U.S. Chamber of Commerce filed a lawsuit against Arizona in an attempt to forestall implementation of this legislation. Their argument was that federal law does not mandate e-verify, therefore a state does not have the right to do so; further, they argued, immigration law is under the jurisdiction of the federal government and should not be regulated by the individual states.

However, these arguments were unsuccessful and the Supreme Court, the Ninth Circuit Court of Appeals and the District Court have ruled that Arizona has the right to enact immigration law within its own borders as long as they are not more lax than federal law.

Several other states have enacted mandatory e-verify legislation for all employers and many more have legislation pending. Other states utilize e-verify for state agencies or state agencies and contractors; many states are beginning to follow Arizona’s lead in aggressively pursuing businesses who employ workers who are not here legally. As a result of the ruling by the Supreme Court, more states are expected to enact legislation similar to that of Arizona.

There are currently five classes of states using the e-verify system:

• States that require e-verify for all employers.
• States that require e-verify for all state agencies and their contractors.
• States that require e-verify solely for state agencies.
• States that have legislation pending for e-verify.
• States that have no legislation and none pending for e-verify.

I-9compliance.com’s provides an electronic compliance solution to help you with your I-9 forms, keeping you ready to respond to any I-9 request by the government at a moment's notice. Visit I-9compliance.com and get started today.