E-Verify Expansion in Iowa to Come?

Everyone is talking about immigration policy these days, but another debate is taking place among Iowa lawmakers considering mandating E-Verify for all businesses. While immigration law remains exclusively in the hands of Congress by virtue of the Constitution, a few avenues exist for states to contribute to the discussion in a roundabout way. Several states have weighed in by requiring some or all businesses to use the E-Verify system to validate the work eligibility of new employees. Iowa is the latest state to consider the measure.

What is E-Verify?

The federal government created a web-based system in 1996 designed to permit employers to check the identity documents of new employees against federal databases during the company’s procedures for I-9 compliance. The Employment Eligibility Verification form (I-9) is the means through which a business verifies the identity and authorization to work of each employee. In this way, Congress has left the responsibility for policing undocumented workers in the hands of American businesses under the theory that they will not come to the United States if they cannot work. Failure to maintain accurate records can result in civil and criminal penalties that can reach into the millions of dollars and generate prison time for company officials. When businesses use E-Verify, they operate under a rebuttable presumption that their I-9 records are in good shape.

During the I-9 processing of a new hire, companies participating in the E-Verify program log into the federal system and enter the information provided by the employee. E-Verify validates the provided documentation with records maintained by agencies such as the Department of Homeland Security (DHS) and the Social Security Administration. Within seconds, an employer receives either an authorization or a notice that further action is required.

Participation in E-Verify

As far as the federal government is concerned, participation in the E-Verify program is encouraged but voluntary, except for federal contractors. US Citizenship and Immigration Services (USCIS) administers the program and has been granted hundreds of millions of dollars for FY 2019 to make vast improvements that permit expansion. DHS, the parent agency of USCIS, stated in its budget request that the extra funding is explicitly for the purpose of making the program mandatory for all American businesses. To date, however, the regulatory steps to do so have not been publicly taken.

Though the federal government currently considers E-Verify a voluntary program generally, some state governments have indicated a preference that businesses participate. We have seen a variety of approaches to the matter with a variety of penalties for noncompliance. Most start with the requirement in force for companies doing business with the state:

• An option to either use E-Verify or retain copies of work eligibility documentation
• State contractors only
• Most or all employers
• Employment through or with local governments
• Employment by state agencies
• Employment by state agencies or public contractors

The Iowa Version

In Iowa, efforts to implement some degree of participation in E-Verify have come and gone over the years. The latest measure introduced in February requires that all Iowa employers use E-Verify to validate new hires and prevents those who do not from receiving any economic development incentive from the government. The bill also creates state penalties for knowingly employing directly or through contract an “unauthorized alien.”  Violation of this or related federal law could result in the suspension or revocation of all state business licensure. The bill was reported out of committee on March 6. Business groups who testified at the hearing were mostly neutral or undecided on the issue, though some expressed concerns about inaccuracies in the system.

The Pro Argument

Sen. Garrett, the bill’s sponsor, made several claims about why his bill is necessary to protect against unfair competition in an op-ed piece for the Des Moines Register:

• Many of the 20% of Iowan businesses that already participate in E-Verify said it was easy to use, quick and accurate.
• Those businesses receive few negative responses from the program because undocumented workers don’t even apply to businesses that use it.
• The claims of inaccurate responses arise from a 2010 study that is outdated and do not represent the current state of the system.
• Because there is “no realistic chance” that the federal government will implement mandatory use, it is up to the states to pressure Congress to pass the uniform law and deter illegal immigrants from “slipping into the country.”
• A November Zogby poll stated that 74% of voters support a mandatory E-Verify.

The Anti Side

Mark Stringer of the Iowa American Civil Liberties Union made the counter arguments in a guest column for the Courier. He claimed that E-Verify is no solution for the country or the state:

• E-Verify has “serious errors,” incorrectly identifying 1% as ineligible to work. With 800,000 new Iowan hires each year, 8,000 people would fall into this category. It is a nightmare to try to correct these errors and can cause months of lost wages for innocent workers.
• It is a threat to privacy, making the personal data and photos of 1.6 million Iowans vulnerable to improper government use and hackers.
• The US Government Accountability Office estimates that 54% of undocumented workers make it through the system because E-Verify doesn’t catch falsified information.
• E-Verify is expensive, and mandatory nationwide use would increase the budget deficit more than $30 billion.
• Iowa needs immigrants and workers.

Democratic Sen. Rob Hogg adds that immigration policy should be left with the federal government, and this bill would put too high a burden on county attorneys to enforce.

We will see what the Iowa Legislature decides to do with this proposal, but the overall debate is guaranteed to carry on. If DHS succeeds in its efforts to mandate E-Verify throughout the US, these state provisions will be rendered moot. Regardless, immigration policy promises to remain a focus of attention for some time to come.