On Thursday, May 11, 2023, the House of Representatives passed the Secure the Boarder Act of 2023 (H.R. 2). The legislation lays out Republican priorities on immigration and contains passages focused on increasing security at the border, tightening asylum restrictions and increasing punishments for those that violate immigration statues. The bill passed on a party-line vote of 219-213, with no Democrats voting in favor and two Republicans, John Duarte (R-CA) and Thomas Masse (R-KY), voting against passage. Other policy points of note include:
- Requiring the Department of Homeland Security (DHS) to resume activities to construct a wall along the U.S.-Mexico border;
- Providing statutory authorization for Operation Stonegarden, which provides grants to law enforcement agencies for certain border security operations;
- Prohibiting DHS from processing the entry of non-U.S. nationals (known as aliens under federal law) arriving between ports of entry;
- Limiting asylum eligibility to non-U.S. nationals who arrive in the United States at a port of entry;
- Authorizing the removal of a non-U.S. national to a country other than that individual’s country of nationality or last lawful habitual residence, whereas currently, this type of removal may only be to a country that has an agreement with the United States for such removal;
- Expanding the types of crimes that may make an individual ineligible for asylum, such as a conviction for driving while intoxicated and causing another person serious bodily injury or death;
- Authorizing DHS to suspend the introduction of certain non-U.S. nationals at an international border if DHS determines that the suspension is necessary to achieve operational control of that border;
- Prohibiting states from imposing licensing requirements on immigration detention facilities used to detain minors;
- Authorizing immigration officers to permit an unaccompanied alien child to withdraw his or her application for admission into the United States even if the child is unable to make an independent decision to withdraw the application; and
- Imposing additional penalties for overstaying a visa.
The implications of these aspects of H.R. 2, if passed, would drastically change the landscape of the U.S. immigration system, but are unlikely to result in massive changes for industries that rely on immigrant labor in the short term. Conversely, the bill would require DHS to adopt an electronic employment eligibility confirmation system modeled after the E-Verify system and requires all employers to use the system. This change could have immediate business impacts on organizations across the country in sectors including agriculture, tourism, hospitality and more.
What is E-Verify?
E-Verify, originally known as the Basic Pilot Program, is an online portal, set up by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, that allows employers to check the employment eligibility of their employees. It uses data collected from an employee’s I-9 form and compares it to DHS and Social Security Administration (SSA) records, informing organizations within seconds of the employee’s status to work in the United States.
For most employers, the E-Verify system is an optional tool they can use in their employee vetting processes, but some jurisdictions do require its use for certain positions. At the national level, a 2007 Office of Management and Budget directive requires all new federal government employees to be E-Verified. Since 2009, federal contractors with Federal Acquisition Regulation E-Verify clauses also must E-Verify any previously employed workers who are working on a federal contract as well as any new hires, regardless of if they are working on the contract.
On the state level, 22 states have an E-Verify requirement in some form. Arizona, Mississippi, South Carolina, Alabama, Georgia, North Carolina, Louisiana, Utah, Tennessee and Florida (starting July 1) require E-Verify to be used by nearly all employers. Indiana, Nebraska, Oklahoma, Virginia, Idaho, Colorado (allows alternatives to E-Verify), Michigan, Texas, West Virginia and Missouri require the system to be used by public contractors and employers. Minnesota and Pennsylvania require public-only contractors to use E-Verify. Requiring the use of verification systems was legally challenged, but was upheld in a 2011 Supreme Court ruling.
Studies on E-Verify have come to different conclusions regarding its effectiveness. Some researchers saw the program reduce salaries for undocumented workers while improving work prospects for certain immigrant groups and U.S.-born Hispanics, and shrinking populations that were likely to be unauthorized workers. Others questioned its ability to stop illegal employment practices, claiming the system spots less than a fifth of undocumented hires and issuing a false positive rate of around 14%. These statistics could raise concerns about staffing shortages, without drastically reducing undocumented employment, if implemented at a nationwide level.
Employment Verification in H.R. 2
In simplest terms, the Secure the Boarder Act would require an E-Verify-style system for almost all hires in the United States. While E-Verify is administered by SSA and the U.S. Citizenship and Immigration Services, this service would be overseen by DHS. Employers found to be in noncompliance with this requirement would be subject to criminal penalties.
This portion of the bill received heavy criticism from both sides of the aisle, with some observers not expecting the verification section to make the final legislation. Stakeholders in industries reliant on seasonal workers, such as agriculture and hospitality, warned that an E-Verify mandate could cripple their abilities to gain sufficient levels of temporary employment. As a result, some members representing rural farm districts—including Reps. Dan Newhouse (R-WA), David Valadao (R-CA) and GT Thompson (R-PA)—sought to have the E-Verify provision removed or for a carveout to be added that would grandfather legal work eligibilities for existing workers. The final bill ultimately included softer language than the original for the agriculture sector, granting a 36-month grace period for re-verification of already hired employees. Other industries did not receive similar protections, instead having timelines based on their company size to reauthorize workers:
- Employers of more than 10,000 employees will have six months to comply;
- Employers of between 500 and 10,000 employees will have 12 months;
- Employers of between 20 and 400 employees will have 18 months; and
- Employers of less than 20 employees will have 24 months.
Next Steps and Analysis
As written, the Secure the Boarder Act is dead on arrival in the Senate due to united Democratic opposition and President Joe Biden has promised a veto even if it does pass the upper chamber. This does not preclude the end of the policies in this bill, and future consideration of its contents, including the expansion of employment verification, should be thought of as off the table moving forward. Considering how Republicans have turned immigration into a tentpole issue for the party, which is reflected in the priority numbering of the bill, it would not be surprising to see this issue rise again in future legislation.
The GOP has already shown willingness to add issues its constituents see as important into must-pass legislation, as evidenced by the inclusion of H.R. 1 in the debt ceiling negotiations. There is a real possibility employment verification gets relitigated during government funding negotiations, Farm Bill drafting, National Defense Authorization Act development or in the politicking of other must-pass bills.
Industry pressure has already been successful in the alterations of E-Verify expansion, and there is already established Republican opposition to portions of the program. Now is the time for stakeholders to engage lawmakers to make sure their employment investments are protected moving forward. Contact the authors of this alert for more information on how Brownstein can aid your organization on this matter.
THIS DOCUMENT IS INTENDED TO PROVIDE YOU WITH GENERAL INFORMATION REGARDING E-VERIFY IMPLICATIONS OF H.R. 2. THE CONTENTS OF THIS DOCUMENT ARE NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS DOCUMENT OR IF YOU NEED LEGAL ADVICE AS TO AN ISSUE, PLEASE CONTACT THE ATTORNEYS LISTED OR YOUR REGULAR BROWNSTEIN HYATT FARBER SCHRECK, LLP ATTORNEY. THIS COMMUNICATION MAY BE CONSIDERED ADVERTISING IN SOME JURISDICTIONS.