Bill in Congress would require use of E-Verify system


Issue Date: June 22, 2011
By Christine Souza

Unless it contains a viable program for agriculture, farm groups say they are prepared to oppose legislation introduced in Congress last week that would require all U.S. employers to check work authorizations against the federal database known as E-Verify.

The Legal Workforce Act, H.R. 2164 by House Judiciary Committee Chairman Lamar Smith, R-Texas, would require employers to electronically verify the eligibility of prospective employees before hiring. Under E-Verify, the Social Security numbers of new hires are checked against Social Security Administration and Department of Homeland Security records in order to identify fraudulent numbers, prevent their use and help ensure that new hires are eligible to work.

"Farmers are concerned that mandatory E-Verify legislation without an effective program to assure a stable, legal labor force could severely handicap a business that is important to California's economic recovery," California Farm Bureau Federation President Paul Wenger said. "California's high-value agriculture is labor intensive and each job in the field supports two to three jobs in related businesses. If farmers are unable to hire those fieldworkers, the impact would be felt in towns and cities across California."

Under the bill, employees performing "agricultural labor or services" would be subject to an E-Verify check within 36 months of the date of enactment; other employers would be given two years to comply. An individual engaged in seasonal agricultural employment would not be considered a new hire if the individual starts work with an employer for whom they have previously worked.

According to CFBF Director of Labor Affairs Bryan Little, who also serves as chief operating officer for the Farm Employers Labor Service, the universal E-Verify requirement would still be a problem for agricultural employers because the bulk of the country's agricultural labor force might not pass such a check.

"If we can't convince Congress that agriculture needs a viable worker program in response to a mandatory, universal E-Verify requirement, we are headed for a train wreck," Little said. "There will simply be no way to plant, cultivate and harvest the high-value commodities we grow in California without it."

CFBF Associate Counsel Carl Borden said the three-year time frame in the bill could allow farm organizations time to work with Congress to create "a truly effective program that's different from the H-2A program."

But, Borden added, "having a reliable labor supply is so important to California agriculture that we can't rely on mere possibilities."

Participation in mandatory E-Verify would be phased in over periods of time, within six months for very large employers with more than 10,000 employees, and as long as two years for employers of 19 or fewer employees.

The bill would pre-empt state laws mandating E-Verify use for employment eligibility purposes, but would retain the ability of states and localities to condition business licenses on the requirement that the employer use E-Verify in good faith under the federal law.

It would also grant employers safe harbor from prosecution if they use the E-Verify program in good faith and, through no fault of theirs, receive an incorrect eligibility confirmation.

"The use of E-Verify does not provide an absolute safe harbor, but it provides pretty much the same type of protection that doing a proper and complete Form I-9 does right now for employers," Borden said. "It would substantially reduce the types of acceptable documents that an employer could rely on in going through the employment eligibility verification process."

The existing immigration program for agricultural employees, H-2A, remains unworkable for most California farmers and those who use the program say it is expensive and ineffective. Agricultural employers who rely on H-2A also face delays and arbitrary decisions by the U.S. Department of Labor, farm groups said. Because of these flaws, the program supplies fewer than 5 percent of the agricultural labor force nationwide.

Created as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, E-Verify has remained voluntary at the federal level, although states such as Arizona, Alabama, Mississippi and, most recently, Georgia have passed their own laws requiring that it be mandatory for all new hires.

"States are taking things into their own hands, and this caused Congress to say, 'We need to do something about this on a national level,'" said Jack King, CFBF National Affairs manager. "The E-Verify legislation does specifically reference agriculture, which shows that the authors of the bill realize there are some different circumstances regarding agriculture, so we believe that is a good sign."

The American Farm Bureau Federation said it opposes the E-Verify bill, barring some solution.

"If Congress is going to require producers and growers to use E-Verify, it is absolutely critical they give us a legal supply of workers. AFBF policy is opposed to E-Verify," said Paul Schlegel, AFBF director of the Environment and Energy Policy Team who works on immigration reform issues.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.