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LABOR & EMPLOYMENT LAW — 8/5/08

House passes bill that would reauthorize E-Verify for five years

Though Congressional efforts to reauthorize the federal government’s E-Verify program had been stalled, the House of Representatives overwhelmingly passed a bill (H.R. 6633) late July 31, 2008, extending the voluntary employment verification program for five more years. Business groups urged the House to extend E-Verify no longer than three years, while legislators were initially considering a bill (H.R. 5596) that would extend the program for 10 years. E-Verify is the federal government’s voluntary web-based program operated jointly by the Department of Homeland Security's (DHS) US Citizenship and Immigration Services bureau in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.

Introduced by Representative Gabrielle Giffords (D-Ariz), the proposed Employee Verification Amendment Act of 2008 was considered on the House’s suspension calendar. Suspension calendar bills are debated for only 40 minutes, they may not be amended and require a two-thirds vote for passage. House lawmakers in the Judiciary Committee (which has jurisdiction over immigration matters) and the Ways and Means Committee (which has jurisdiction over social security matters) reached a bipartisan agreement on the bill’s language late July 29. The bill, which passed by a vote of 407 to 2, can be found at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h6633ih.txt.pdf. “This legislation addresses one of the many vital aspects of our country’s immigration crisis: the need for a tough and effective federal employee verification system,” said Giffords.

The House bill would keep E-Verify a voluntary program, even though some states, including Arizona, Arkansas, Colorado, Georgia, Idaho, Minnesota, Mississippi, Oklahoma, Rhode Island, South Carolina and most recently Missouri have all mandated its use in some form. However, should Congress fail to reauthorize E-Verify, these states’ immigration laws could be thrown into turmoil. E-Verify has also been designated as the program federal contractors must use to verify the employment eligibility of all new hires and current employees assigned to work on future federal contracts, according to Executive Order (EO) 12989 issued June 6 by President Bush. The terms of the EO will not become effective until final regulations are issued, which are expected at the end of 2008. E-Verify will sunset in November 2008 without congressional action.

As part of the proposed Employee Verification Amendment Act, Ways and Means Social Security Chairman Michael R. McNulty (D-NY), and Ranking Member Sam Johnson (R-TX) successfully secured provisions in the bill guaranteeing that DHS provide timely reimbursements to SSA for E-Verify’s use of SSA resources. This compromise ensures that SSA’s own funds are fully available to serve Social Security and SSI beneficiaries, McNulty and Johnson said. In addition, with the accuracy of E-Verify heavily debated in Congress, the bill requires the Government Accountability Office (GAO) to conduct a study the program’s erroneous tentative nonconfirmations (processes to remedy the errors and the impact the errors have on individuals, employers and federal agencies) and E-Verify’s impact on small businesses.

Even though the House has passed legislation extending E-Verify, the Senate must come to an agreement on companion legislation or the program will sunset. Currently, there are two measures in the Senate to extend E-Verify.

Senator Arlen Specter (R-Pa) introduced a bill in July 2008 (S. 3257) that would reauthorize the program for five years. In addition, his bill would also reauthorize the EB-5 regional center program, which allows qualifying foreign investors and their families to obtain green cards if the investor (among other things) invests $500,000 or $1 million in a business that also provide 10 direct or indirect jobs. The bill would also extend a visa program for religious workers (who are not ministers) for three years and reauthorize the J-1 visa waiver program for foreign medical graduates. Senator Charles Grassley (R-Iowa) also introduced a bill (S. 3093) in Jun 2008 reauthorizing E-Verify. Among other things, his bill would make E-Verify permanent and give employers the option to verify the employment eligibility of all their employees, not just new hires, and allow DHS to require companies to use the E-Verify program if a pattern of illegal hiring is found. In addition, Grassley, led by a group of 12 other senators, asked Majority Leader Harry Reid (D-Nev) to ensure passage of legislation to reauthorize E-Verify before the program expires.

However on July 29, media reports indicate that Senator Robert Menendez (D-NJ) put a legislative hold on legislation to reauthorize E-Verify in the Senate. He wants to amend any bill reauthorizing E-Verify with language that would “recapture” any unused employment and family visas dating back to 1992. 61 senators are needed to override the hold. Because Congress is expected (due to the November election) to be in session for only a few weeks after it returns from its August recess, there is only a short period of time to reauthorize the program.

More information on E-Verify can be found at: http://www.dhs.gov/ximgtn/programs/gc_1185221678150.shtm.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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