The Fresno Bee reports that some employers, particularly within the agriculture industry, will not use E-Verify, the federal electronic employment verification system, to authenticate new hires’ legal work status. Relying on figures provided by the federal government, the paper states that “[o]ut of thousands of businesses in Fresno, for example, only 179 use the program… although those numbers don't account for businesses that contract with personnel companies using the program.” Businesses cite two main reasons for their non-participation in E-Verify: (1) administrative burden; and (2) a shortage of available legal workers.

Administrative Burden

Businesses unwilling to use E-Verify often point to the associated administrative burden. The Department of Homeland Security (DHS), which runs E-Verify, acknowledges that simply preparing to use E-Verify requires between a few days to several months, depending on a business’s size and processes. Human resources staff must devote time to enrolling in the program, and learning how to use it (via DHS manuals or online tutorials). Conducting the verification process and addressing issues that arise if E-Verify finds an individual ineligible to work requires time and resources.

However, the risks of noncompliance are significant. As previously reported here, the current administration’s approach to immigration enforcement centers upon employer audits. In April 2009, DHS issued a fact sheet, which revised its Worksite Enforcement Strategy to strengthen its focus on employer noncompliance. Two months later, 652 businesses received Notices of Inspections from Immigration and Customs Enforcement; at the end of the year, in December 2009, 1,000 faced audits, and the trend continues in 2010. From October 2009 to July 2010, businesses in Texas alone were fined over $600,000.

Also, although federal law makes E-Verify mandatory only for federal contractors, an increasing number of state and local governments have passed laws mandating the use of E-Verify. These laws typically apply only to public employers and contractors, but some states and municipalities require private employers to use E-Verify. In certain states and municipalities with proposed or actual immigration-related laws, use of E-Verify benefits employers because it provides a good faith defense to hiring violations.

The Legal Workforce

The lack of an available and willing legal workforce is another justification companies put forth for not using E-Verify. As an agricultural employer told The Fresno Bee, “[E-Verify] may work for Costco, but Costco doesn't have the problem I have,” i.e., a legal workforce shortage. The United Farm Workers of America, a large agricultural workers union, recently ran a campaign called “Take Our Jobs” that challenged individuals with legal U.S. work status to take illegal immigrants’ positions working in the fields. As noted by The Hill, only seven individuals accepted the challenge, the most notable being Stephen Colbert of Comedy Central’s “The Colbert Report,” who testified (in character) about his experience before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.

Farmers interviewed by The Fresno Bee stated their preference for a legal workforce, and some pending bills aim for this result. In October 2010, Senator Saxby Chambliss introduced a bill (S. 3912) that aims to provide a non-amnesty option for temporary agricultural workers and streamline the H-2A temporary worker program. The Menendez-Leahy comprehensive immigration reform bill seeks, among other things, to address shortcomings in existing worker programs that have led to undocumented migration.

Employers or individuals wanting to learn more about E-Verify can read Littler’s Insight, A Basic Guide to E-Verify and Related Immigration Compliance: Everything Federal Contractors and Others Need to Know to Comply with E-Verify Requirements, this blog’s E-Verify entries, or visit the DHS E-Verify page.