June 25, 2018 3:37PM

House Republicans Consider E‐​Verify Mandate as Part of “Compromise” Bill. What Will Happen When E‐​Verify Fails to Deliver?

House Republicans worked over the weekend to revise the Ryan immigration “compromise” bill in an attempt to bring enough Republicans on board to pass it.  Many restrictionist Republicans in Congress voted against the harsher Securing America’s Future (SAF) Act last week because it granted a path to legal status without citizenship for some Dreamers.  Although SAF did not offer a path to citizenship for Dreamers, some House Republicans voted against it because they consider a grant of legal status of any kind for Dreamers to be amnesty.  The political problem is that Ryan’s “compromise” bill enhances the charge of amnesty because it offers a path to citizenship for a small number of Dreamers.  As a result, House Republicans are considering a national E-Verify mandate to get the restrictionists on board with the Ryan “compromise” bill (they are also considering an agricultural guest worker visa program so Republicans from agricultural districts aren’t dissuaded by E-Verify). 

This political horse-trading won’t likely work but E-Verify has some serious problems today that could grow into worse ones tomorrow.  People must consider these problems before getting on the E-Verify bandwagon.

E-Verify is a federal electronic eligibility for employment verification system for employers to check the identities of new hires against government databases to guarantee that they are legally eligible to work.  The system is intended to exclude illegal immigrants from the workforce to reduce the incentive to immigrate here in the first place.  E-Verify is mandated for all new hires in a few states and some other categories of employers but not nationwide.  If Congress ever mandates E-Verify nationwide then all native-born Americans would also have to be run through E-Verify and get government permission to work in order for E-Verify to have a chance of meeting its objective.  Any interior immigration enforcement system that seeks to reduce the employment of illegal immigrants, including E-Verify, will have to be used against legal immigrants and native-born Americans too. 

E-Verify has severe systematic problems and will not do much to turn off the wage magnet that attracts illegal immigrants.  This is a problem for several reasons but what worries me the most is what would happen after Congress mandated E-Verify and then they realize that it doesn’t work.  What steps will Congress then take to make electronic verification for employment “work” as they intend? 

In such a situation, I predict that Congress will then try more invasive methods to make E-Verify effective or to make a more invasive successor program.  Congress created the I-9 program to attempt to cut down on the hiring of illegal immigrants as part of the 1986 Immigration Reform and Control Act (IRCA).  The I-9 requirement required employers to check new worker credentials and keep the paperwork on file for the government but, crucially, did not require approval by a government bureaucracy.  Although the I-9 requirement lowered the relative wages of illegal immigrant workers by increasing the legal risk faced by employers, it did not switch off the wage magnet. 

Recognizing the limited impact of the I-9, Congress created a basic pilot program for an electronic eligibility for employment verification system in 1996 that eventually evolved into E-Verify.  If Congress ever mandates E-Verify then its many problems and low rate of compliance in states where it is currently mandated will be obvious nationwide.  The Legal Workforce Act, which is the standard legislative proposal for a nationwide E-Verify mandate, creates new pilot programs for electronic verification – almost as if its authors anticipate that E-Verify will fail to live up to expectations.  The details of these future pilot programs are fuzzy but the legislative mandate is broad.   

Should Congress mandate E-Verify nationally for all new hires, the next logical step after E-Verify’s failure would be to add a biometric component.  This would help close some of the holes in the system but likely result in more innovative workarounds.  The RIDE program is already adding pictures to E-Verify so employers can check driver’s license photos against job applicants.  The next obvious step for Congress would be to add additional biometrics like fingerprints which some of E-Verify’s biggest supporters already favor.  Just as the Social Security number grew from a personal identifier for retirement benefits to a financial identification tool to the primary government number used for legal employment, E-Verify’s uses will also grow over time.  Such a system could be used for all types of quick legal checks from purchasing firearms to buying cigarettes or renting an apartment. 

Adding new biometric identification tools to E-Verify is worrying for civil liberties, privacy, and identity theft reasons but its expansion to non-immigration enforcement purposes should cause some reflection even among its most ardent opponents.   

The best thing about E-Verify is that it doesn’t work very well.  The worst thing about E-Verify is how Congress will react once it realizes that the system has failed to live up to its promise.  James Madison wrote, “Perhaps it is a universal truth that the loss of liberty at home is to be charged against provisions against danger, real or pretended from abroad.”  While not true in all cases, Madison’s observation certainly rings true here as interior immigration enforcement programs like E-Verify also restrain the freedom of American citizens.  Without a doubt, future programs designed to overcome E-Verify’s many flaws will go even further.