E-Verify Requirements for Farm Labor Likely to Increase Following Supreme Court Decision

E-Verify is the federal government’s electronic employment verification system. It is an Internet-based system that allows an employer, using information reported on an employee’s Form I-9, Employment Eligibility Verification, to determine the eligibility of that employee to work in the United States. The E-Verify system is operated by the Department of Homeland Security in partnership with the Social Security Administration. It is free to employers and is limited to determining the employment eligibility of new hires only. Proponents of immigration reform hail it as a step in the right direction, while many others raise concerns that the accuracy of the system is unacceptably low and that the system increases the risk of identify theft.

Participation in E-Verify is voluntary for most businesses. Some companies are required by state law or federal regulation to use E-Verify. For example, most employers in Arizona and Mississippi are required to use E-Verify and E-Verify is also mandatory for employers with certain federal contracts (with a performance period over 120 days at a value of over $100,000) or subcontracts that contain the Federal Acquisition Regulation E-Verify clause. On May 26, 2011, the United States Supreme Court upheld Arizona’s “Legal Arizona Workers Act,” which contains a mandatory E-Verify requirement to maintain an Arizona business license. This means that more governmental entities will likely begin making E-Verify a key component in their immigration reform policies.

California currently does not require employers to use E-Verify and legislation to make it mandatory in the state have so far failed. Some individual California cities, such as Mission Viejo, Lancaster, Temecula and Lake Elsinore, have passed ordinances requiring the use of E-Verify for all city businesses. Costa Mesa, San Luis Obispo, Santa Maria, Santa Barbara, and San Jose have all recently considered such legislation. For now, E-Verify is voluntary for most California businesses. The federal government through the Department of Homeland Security (“DHS”) has initiated the “I E-Verify” program where businesses that have voluntarily adopted the use of the E-Verify program are recognized on a DHS-created list. The list is intended to boost the stature of the participating employers with immigration-conscious customers.

We will continue to follow the California trend and report to you as it progresses.

For more information on labor and employment issues contact Jennifer Phillips at [email protected].

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