Immigration legislation cleared a procedural hurdle in the Senate yesterday, with the motion to proceed to the bill passing 82-15. One of the provisions in this bill is a nationwide mandatory system for employment verification, to ensure that employers only hire people who are legally authorized to work in the United States. That system is called E-Verify, and it currently exists as a pilot program that is voluntary for employers.
Chris Calabrese of the ACLU calls mandatory E-Verify, “A sea change in how employment operates.” He says that, “For the first time, you will need affirmative permission from the government in order to work. That’s completely new.”
I don’t think this is as big a change as Calabrese makes it sound. While E-Verify is not currently mandatory, employers are required to use Form I-9 to document each employee’s authorization to work in the U.S. The form requires employees to show government-issued documents to confirm both their identity and work authorization. For example, a driver’s license confirms identity, and a Social Security Card confirms work authorization. A U.S. Passport confirms both. Those forms must be saved by employers, and are subject to government audit, with penalties for noncompliance.
The current system is not perfect, since it is vulnerable to employees who provide false identification. If the employer uses E-Verify, the information in the I-9 is checked against government databases to confirm its validity. That makes it harder to use false identification to get a job, since a fake name or Social Security Number would fail to match government records.
Instead of the ACLU’s framing of mandatory E-Verify as “a sea change in how employment operates,” I think the Heritage Foundation’s Paul Rosenzweig frames the issue more accurately as a question of the costs and benefits of new regulation:
“If you think that the desire to identify people who work is an important societal value, you have to understand that that’s going to have some incidental adverse cost.”
Rosenzweig sees the benefit of identifying people who work as important enough to justify the cost of new regulation. In this case, the cost of the new regulation is making it harder for businesses to hire, and for workers to find jobs. That’s because E-Verify sometimes incorrectly rejects employees who are legally authorized to work. Of all employees submitted to E-Verify, 1.35% are initially reported to be unauthorized to work in the U.S., since their information does not match government records. However, about one in five of those employees is later found to be duly authorized after appealing the determination and correcting the government’s records. Appealing an incorrect decision is a complex bureaucratic process, particularly for legal immigrants with more complex documentation, and many legal workers may choose not to appeal or fail to understand what they need to do.
Requiring employers to participate in E-Verify is expected to lead to more errors that cause legally authorized workers to be turned away from jobs. Employers currently using E-Verify are doing so voluntarily, and presumably are capable of handling the paperwork reasonably well. Forcing the rest of the nation’s employers into the system will bring users to E-Verify who are less enthusiastic and competent with the requirements.
It’s worth noting that many of the same people who support mandatory checks of federal databases for employment oppose mandatory checks of federal databases for gun purchases. In the case of mandatory E-Verify, the benefit of stopping undocumented immigrants from getting a job must be weighed against the cost of occasionally hindering legal hires. In the case of a gun purchase, the benefit of reducing gun deaths must be weighed against the cost of occasionally hindering a legal firearm purchase.
All else being equal, I think the current system of requiring the I-9 Form is fine without mandatory E-Verify. Unlike Mr. Rosenzweig at Heritage, I don’t think the benefits from increased enforcement outweigh the economic drags that the new regulations would impose on employers and employees.
But all else is not equal when it comes to mandatory E-Verify. E-Verify is a key part of the balancing act required to pass comprehensive immigration reform. One side of the bill increases border security and immigration law enforcement. The other side of the bill eases the path for immigrants to come to the U.S., and creates a path to citizenship for immigrants here illegally.
Keeping both sides in the bill is critical to getting it through Congress. Getting important things done in a Democracy requires trade-offs, so the problems of mandatory E-Verify must be weighed against the benefits of legislation that moves America closer to its ideals as a nation of immigrants.