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Strange Bedfellows: Tea Partiers & Democrats Both Oppose HR 2885, the Mandatory E-Verify Bill

September 16, 2011

E-Verify is an online system operated by the Department of Homeland Security in conjunction with the Social Security Administration. The system allows employers to verify employment authorization of newly-hired employees in conjunction with the I-9 employment eligibility verification process. At present, only employers who have federal government contracts are mandated to use E-Verify. House Judiciary Chair Lamar Smith has sponsored HR 2885 which would require all employers to use E-Verify.

Immigration and Customs Enforcement (ICE) is the agency charged with enforcement of employment eligibility and work authorization laws. ICE has been holding a series of seminars across the country urging employers to become part of the ICE Mutual Agreement between Government and Employers (IMAGE) program. Employers who join the IMAGE program agree, among other things, to use E-Verify. To incentivize employers to join IMAGE, ICE has agreed to waive potential fines on substantive violations if less than 50% of the employer’s I-9 forms are noncompliant, and ICE will charge no more than the statutory minimum in fines if more than 50% of the I-9s are substantively noncompliant. In addition, joining IMAGE provides a participating employer a 2-year safe harbor from another I-9 investigation by ICE.

ICE officials who spoke at the Seattle, Washington seminar on July 26, 2011 explained, however, that if legislation passes which mandates use of E-Verify for all employers, then ICE would no longer have an incentive to encourage employers to join IMAGE. The 2-year safe harbor and potential elimination or reduction in fines would disappear.

HR 2885 looks unlikely to pass even the House, however. According to a press report, the bill is opposed by other Republicans on the committee as well as members of the Tea Party. Conservatives have historically split between those who prioritize law enforcement versus those who prioritize 4th Amendment protections against unreasonable search and seizure by the government. The Tea Party opposition to HR 2885 places the group on the same side of the argument as Democrats, immigrant rights groups, and some other Republicans.

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