The Immigration Reform and Control Act of 1986 made it unlawful for employers to knowingly hire and employ noncitizens who are not authorized to work in the United States. It also required employers to verify employment eligibility. The onus to verify this legal working status falls on the hiring company—but companies often unknowingly accept fake documentation or are complicit in the hiring of illegal labor. Until Congress passed the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), employers used the familiar Form I-9. The IIRIRA created a pilot program that would later become E-Verify, an internet-based, electronic government-run program that uses records and information available to the Department of Homeland Security and the Social Security Administration to confirm whether an employee is eligible to work in the United States. The program has continually been reauthorized by Congress and updated with the latest technology to become the premier employment verification system in the United States.
The program works by verifying information and documents provided to the employer. The system takes information from the legally required Form I-9 (Name, SSN, DOB, Citizenship or ARN, Etc.) and verifies it against available government databases and photo matches the submitted documentation almost instantly.
There is no federal mandate for employers to use E-Verify; only the federal government and contractors and subcontractors of the Federal government are required to do so under the Federal Acquisition Regulation (FAR). While many states have embraced the program and passed legislation to mandate usage of the program for all employers, there are a number of states that do not require it. Currently, 22 states (Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and West Virginia) direct E-Verify use in some form. Each state has different obligations for use; some mandate all employers, and others have different thresholds for use based on the number of employees at a given company.
The use of E-Verify is widely successful, with over a million employers registered on the platform and roughly 1,500 new participating companies every week, E-Verify is one of the federal government’s highest-rated services for user satisfaction. Yet, many still detest the requirement for all employers as a supplement to the Form I-9 process.
In 2018, a piece of legislation containing universal E-Verify provisions was defeated as members stated they were openly fearful that mandatory E-Verify would work effectively and deprive employers of an illegal alien workforce. Consider what some top Democrats were saying at the time:
Jerrold Nadler (D-N.Y.): “It would decimate the agriculture community by requiring employers to use the E-Verify employment verification system without fixing the underlying immigration system.”
Zoe Lofgren (D-Calif.): “It mandates the use of E-Verify, which would be highly disruptive to restaurants, hotels, and other industries.”
Sheila Jackson Lee (D-Texas): “It mandates the use of E-Verify on a nationwide basis, thereby crippling industries such as agriculture, restaurants, hotels, construction, and many others … despite the reliance on undocumented immigrants by several large sectors of the U.S. economy.”
It is estimated that over 75 percent of the unauthorized immigrant population in the United States is in the labor force.[1] When opportunities exist to obtain employment, there will remain incentives to enter the United States illegally or to overstay visas. A reliable and mandatory employment eligibility verification system, along with better enforcement, will serve to deter illegal immigration and increase border security efforts. In 2023, the House passed immigration reform legislation containing mandatory E-Verify usage, the closest we have come to a nationwide requirement for this important verification tool. Still, this is not enough. We have the tools we need to effectively verify the legality of America’s workforce; all we need to do is use them. To protect the workforce in this country, we must mandate the use of E-Verify to ensure that all hired workers are authorized to work in the United States.
[1] While there is no way to accurately estimate the number of unauthorized immigrants living in the United States, Pew Research Center tries to do just that. See “What we know about unauthorized immigrants living in the United States,” (July 22, 2024). Pew is basing their estimate of the immigrant population on their 2022 American Community Survey and estimated that the population was 11 million in 2022. Pew estimates that 8.3 million are in the workforce. American Cornerstone Institute believes that the number of unauthorized immigrants living in the United States in 2024 to be much higher.
