E-VERIFY

Employers support worksite enforcement. The overwhelming majority of employers want to be on the right side of the law – it's their obligation as citizens, and it makes good business sense.

Employers need a workable, effective worksite enforcement system. Any mandatory employment verification program must be timely, efficient, accurate and easy for businesses to use.

Punish bad employers and protect good ones. Because E-Verify cannot detect identity theft, the information it gives employers is often wrong. Employers who use the system in good faith should not be held liable for actions they take on the basis of the information provided – even if they end up hiring unauthorized workers or terminating legal employees.

The states' room to maneuver on E-Verify is now a matter of settled law. With Congress stalemated and unable to act on immigration, states across the country have been taking matters into their own hands – and until last spring, no one could be sure what was constitutional for the states to require employers to do. That changed in May with the Supreme Court's U.S. Chamber of Commerce v. Whiting decision, which clarifies precisely what state lawmakers can and cannot require.

The Supreme Court said states may mandate E-Verify – under certain conditions. In the wake of the Whiting decision, states may require some or all employers to enroll in E-Verify. States may also suspend or revoke the business licenses of employers found to have hired unauthorized immigrants. Both types of measures are constitutional. But the justices also placed strict limits on what the states can mandate – only state worksite enforcement that "closely tracks" federal enforcement and is consistent with all its rules.

What the states cannot require of employers. States cannot establish their own worksite enforcement protocols. They cannot order employers to use E-Verify in any special or unique state-mandated way – only in keeping with existing regulations issued by the federal government. And states cannot punish employers for failing to use E-Verify – remember, participating is voluntary under federal law – only for knowingly hiring unauthorized immigrants. Also prohibited by federal law: using E-Verify in any context other than the workplace – to verify who is eligible for state unemployment insurance, for example, or other state benefits.

The Supreme Court has not authorized any other kind of state immigration enforcement.
The Whiting decision is narrowly tailored and applies to worksite enforcement only. Measures modeled on Arizona's controversial 2010 policing law, state efforts to repeal birthright citizenship, provisions canceling contracts with unauthorized immigrants, mandates that state authorities check the immigration status of students or hospital patients – none of these have been sanctioned by the court. And state efforts to pass provisions other than worksite enforcement risk being found unconstitutional.


RESOURCES

IW-National Restaurant Association survey on the use of E-Verify in the restaurant industry, April 30, 2013

IW and the National Restaurant Association press briefing to release results of E-Verify survey, April 30, 2013

ImmigrationWorks, E-Verify in the states, January 2012

Migration Policy Institute, The basics of E-Verify, July 2011

National Immigration Law Center, E-Verify and small businesses, June 2011

Immigration Policy Center, Mandatory E-Verify without legalization, February 2011

E-Verify bookshelf

Map and chart of state E-Verify laws

Worksite enforcement laws in the states

Official E-Verify website

2011 House E-Verify bill