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On December 26th, 2007 State Senator Charles Colgan (D-29) introduced SB 90 into the Virginia General Assembly. SB 90 would compel all Virginia employers to participate in a program known nationwide as the Eligibility Verification (E-Verify) program. E-Verify is designed to reduce unauthorized employment by workers not eligible for employment due to their illegal status in the U.S. The U.S. Department of Homeland Security (DHS) manages the nation's E-Verify program, which only validates the status of new hires. It does not provide a job applicant's immigration status. Nor does it pre-screen applicants or re-verify the status of current employees.
Originally established in 1997 as the Basic Pilot/Employment Eligibility Verification Program, E-Verify "requires all public contracts and their subcontractors to register and participate in a federal Electronic Work Verification Program ... to determine that their employees and individual independent contractors are legally eligible for employment in the United States."
Currently, the program is both free and voluntary, and approximately 33,000 employers across the nation are participating. Some employers do so simply because they respect the law. Most do so to protect themselves from the consequences of an unannounced raid by Immigration and Customs Enforcement (ICE). The most common voluntarily participating industries include food services, drinking establishments, administrative and support personnel, professional and technical services, and retail stores.
In order to participate in the program, an employer must register online, and enter into an agreement with the DHS, which includes:
- A promise that every new employee's Social Security number and immigration ID will be run through the program within three days of hire
- A promise not to use the system for pre-screening
- Advance notice to employees that the employer participates in the program
- Notation of a unique DHS-generated PIN number on or with the I-9 of each new employee
- In the event of "non-confirmation," a 10-day appeal process, during which the employer must allow the employee to continue to work
If an employer using E-Verify obtains a negative result from the system, the employer is instructed to provide the employee with the procedures required to challenge the result. The burden would then rest with the employee to resolve the discrepancy with the SSA or the DHS. Employees will have ten days to clear up the issue. If the employee's contested status is not resolved within ten days, the case will close and the employee will be dismissed due to ineligibility.
Senator Colgan's bill is a companion bill to one introduced into the House side of the Assembly by Virginia House Delegate Paul Nichols (D-51) on December 13th, 2007. Nichols' bill, HB 90, mandates only that contractors working for the state participate in the E-Verify program, not every Virginia employer.
Both Mr. Nichols and Mr. Colgan represent residents of Prince William County.
Senator Colgan's SB 90 moved to the Senate Courts of Justice Special Subcommittee on Immigration on Monday, January 28th. Richard Saslaw (D-35), a local legislator from Alexandria and parts of Fairfax County, chairs this committee and pledged that no bills dealing with the illegal alien problem will pass this session. Four days after the bill's assignment to Saslaw's committee, the committee killed SB 90 on a vote of 13-2. Only Senators Ken Cucinelli (R-37) and Mark Obenshain (R-26) voted to keep the bill alive.
If this legislation were to be enacted, then potentially, depending upon its final wording, all of Virginia's employers could be required to utilize E-Verify to confirm the employment eligibility of new employees. Employers would be compelled to electronically compare new employee information from Form I-9 against the 425 million records in the Social Security Administration (SSA) database.
Greg Siskind of ILW.com reports that "four states have passed legislation mandating E-Verify be used by [all] employers in the state -- Georgia, Colorado, Oklahoma and Arizona." Idaho, North Carolina, Pennsylvania, Minnesota and Missouri have all mandated that their state agencies participate in E-Verify. In addition, ten more states are considering legislation that would require state contractors to use the system. And, besides Virginia, legislation is pending in Utah, Missouri and Rhode Island that would require not only public, but also private sector employers to use E-Verify.
Though in play less than a month, both Arizona's and Oklahoma's implementation of E-Verify has already resulted in a number of illegals fleeing both states. DHS is expected to continue and likely even increase its program of random raids and checks on employers nationwide. Businesses all across America can and should prepare themselves by voluntarily subscribing to the E-Verify program regardless of state mandates.