Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, on June 14 introduced legislation that would require most employers to use the U.S. government’s electronic employment verification system, known as E-Verify, to check the work eligibility of new hires.

The Legal Workforce Act, H.R. 2164, promptly won the support of the U.S. Chamber of Commerce.

Speaking on behalf of more than 3 million member firms of all sizes, the Chamber said that the “legislation represents a legitimate balancing of many competing interests” on immigration policy.

Similarly, SHRM, the association of HR professionals, expressed its appreciation to Chairman Smith for introducing legislation that would create “a fully integrated, federal, electronic employment verification system.” Read more.

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Mandatory E-Verify: Momentum Building on Capitol Hill

Tue Jun 28, 2011

Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, on June 14 introduced legislation that would require most employers to use the U.S. government’s electronic employment verification system, known as E-Verify, to check the work eligibility of new hires.

The Legal Workforce Act, H.R. 2164, promptly won the support of the U.S. Chamber of Commerce.

Speaking on behalf of more than 3 million member firms of all sizes, the Chamber said that the “legislation represents a legitimate balancing of many competing interests” on immigration policy.

Similarly, SHRM, the association of HR professionals, expressed its appreciation to Chairman Smith for introducing legislation that would create “a fully integrated, federal, electronic employment verification system.”

The legislation contains a number of important features that reflect the ongoing dialogue that has taken place between the Judiciary Committee and the employer community to ensure that the E-Verify system, if mandated nationwide, would be workable for employers and represent an improvement over present requirements.

For example, H.R. 2164 would preempt recent state laws that, to the consternation of multi-state employers, impose different variations on the E-Verify mandate. Pre-emption has become important for employers since the recent U.S. Supreme Court decision to uphold an Arizona law that permitted the state to revoke the business licenses of employers who refuse to adopt the federal E-Verify system. Under the Smith bill states could continue to condition licensing on using E-Verify, but only when E-Verify is mandated by federal law.

In addition, H.R. 2164, with few exceptions, would require employers to use E-Verify for only new hires, not existing employees. Government employers and those involved in critical infrastructure projects would be required to run E-Verify checks on all employees. E-Verify would also be required for employees who receive a notice from the Social Security Administration of a name-number mismatch.

Finally, if enacted, mandatory E-Verify would be phased in over time according to company size. Employers with more than 500 employees, for example, would be required to enroll in E-Verify within one year of the six-month waiting period following enactment. And last but not least, the bill stipulates that mandatory electronic E-Verify would completely replace the existing paper-based Form I-9 verification process.

What’s the outlook for the Legal Workforce Act? In introducing H.R. 2164, Chairman Smith tied its enactment directly to unemployment and the need to create new jobs. “With unemployment at 9%, jobs are scarce,” said the Texas congressman. “Despite record unemployment, seven million people work in the U.S. illegally. These jobs should go to legal workers.”

Much, of course, will depend on the position of the Obama Administration. The president recently called for comprehensive immigration reform legislation that would create a pathway to citizenship for millions of illegal immigrants. E-Verify addresses only one part of the overall immigration issue—the hiring of undocumented workers.

Nevertheless, with unemployment remaining stubbornly high and new job creation continuing at an anemic pace, public pressure could build on Congress to show at least some progress on immigration policy. Employment verification legislation may be the place to start.

To be sure, H.R. 2164 as drafted isn’t perfect. The U.S. Chamber of Commerce, SHRM and associations of home builders and restaurants have signaled support, especially for federal pre-emption and full replacement of the I-9 process. Others, including some labor unions and immigrant advocacy organizations, have expressed reservations.

In the heated partisan atmosphere of Capitol Hill it’s impossible to predict whether any proposed legislation can be approved. The Legal Workforce Act enjoys three advantages that improve its chances relative to other proposals: one, mandatory E-Verify has strong public support; two, employers are deeply concerned about having to comply with state-by-state E-Verify mandates; and three, with unemployment over 9% Congress and the White House are under pressure to do something about illegal immigration.

My prediction: by this time next year mandatory E-Verify will be signed into law.