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E-Verify vs "Sanctuary Businesses"

Bridge Team Member

Ongoingtensions between the Trump administration and so-called "sanctuary cities" havebeen the subject of much debate, as well as hotly contested litigation inrecent months.

However, accordingto a recent article from the Los Angeles Times, advocates on both sides of the immigrationdebate appear to be setting their sights on a new culprit for the flow of undocumentedimmigrants into the U.S. Namely, employers who hire these unauthorized workers,or, to coin a term being used with increasing frequency by immigrationactivists, "sanctuary businesses". 

For manyconservatives, clamping down on these employers is a crucial step in combatingillegal immigration. Even many pro-immigration advocates argue that federalagencies should be focusing more of their enforcement efforts on employers,rather than simply the individual employees and their families.

Theprimary tool currently available for employers to ensure each new employeeholds the necessary employment authorization is the E-verify system. First createdin 1996, this online system promises to provide "InstantVerification of Employment Eligibility" by comparing the information collected on an employee’s I-9 form todata held by the Department of Homeland Security and the Social SecurityAdministration.

Although theUnited States Citizenship and Immigration Services claims the E-verify systemis currently used by more than 700,000 employers nationwide, participation inthis program remains mostly voluntary.

Lawmakerson Capitol Hill are looking to change this. On Jan. 24, 2017, Sen. ChuckGrassley, R-Iowa, introduced legislation that would make E-verify mandatory for both public and privateemployers nationwide. Sen. Claire McCaskill, D-Mo., has also been a vocalcritic of immigration enforcement measures that she perceives to be too soft onemployers. During a congressionalhearing about immigration enforcement held in March, she asked the presidentof the National Immigration and Customs Enforcement Council:

"Why aren’twe going after the employers who are knowingly cheating? They are creating anunfair competitive advantage and are a magnet that is helping draw people overthe border…[Y]ou start taking businesses to court and actually punishing themfor doing this, it is going to clean this up faster than all of the borderagents in the world."

Similarefforts can be found at the state level. According to data collected by theNational Conference of State Legislatures, there are currently nine states thatmandate the use of E-verify for private employers, while another 13 statesrequire that public employers and/or public contractors utilize the E-verify systemwhen hiring new employees. 

However,these measures have been largely criticized for their lack of enforcementand low compliance rates. Forexample, in Arizona, whose legislation threatens to revoke business licensesfrom companies knowingly employing undocumented workers, only 57 percent ofemployers used the E-verify program for new hires. In addition, the SouthCarolina measure contains several loopholes that exempt many industries thathave traditionally been associated with high levels of undocumentedworkers.

Opponentsof the E-verify system argue that imposing it across the country will be undulyburdensome to small business owners. It has also been reported that states that impose mandatory E-verify compliance onprivate employers are more likely to see a spike in the usage of temp agenciesby employers as a means of working around this requirement. Concerns have also been raised regarding instances of errors or omissions infederal databases leading to potential employees being wrongly reported asineligible.

For all ofits faults, E-verify does not appear to be going away anytime soon.Furthermore, as various stakeholders look to make political footballs out ofso-called "sanctuary businesses", it’s nationwide imposition on privateemployers appears increasingly inevitable.

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.us.

Disclaimer: This content is not a form of legal advice and should not be treated as a substitute for legal counsel. Bridge US encourages readers to discuss any and all immigration-related concerns with an attorney.

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