NSBA Participates in Senate Roundtable on E-Verify

May 22, 2013

pic-congress-hearingOn May 16, the Senate Committee on Small Business and Entrepreneurship held a roundtable on “The Impact of Mandatory E-Verify on America’s Small Businesses.”  Participating Senators included the Committee Chair, Sen. Landrieu (D-La.), and Ranking Member, Sen. James Risch (R-Idaho), as well as Sens. Jeanne Shaheen (D-N.H.) and Marco Rubio (R-Fla.).  NSBA General Counsel David R. Burton was one of the private sector participants.

Toward the end of the roundtable, Sens. Landrieu and Risch expressed a willingness to work together to offer a bipartisan small business floor amendment addressing many issues raised by NSBA during the roundtable.  It would presumably address: (1) improved E-Verify accuracy standards with significant consequences for failing to meet those standards; (2) time limits on resolving E-Verify database errors; (3) strengthening the USCIS Advocate (created by Sen. Al Franken’s (D-Minn.) amendment); (4) reducing employer penalties; and other matters.

Sen. Rubio, who is a member of the so-called immigration “Gang of 8” that drafted the initial bill, expressed support for ensuring that the bill makes it clear that if you possess a U.S. passport that you are authorized to work notwithstanding what E-Verify might say about your status.  NSBA has sought this provision.

NSBA is seeking modifications to the E-Verify provisions in the immigration bill, and made the following key points at the roundtable.

First, the penalties imposed need to be reasonable.  The Legal Workforce Act reported out of the House Judiciary Committee last Congress would have imposed penalties for failing to use E-Verify as high as many states impose for second degree murder (up to 10 years in prison).  Certainly, employing someone should not rank in seriousness with taking another person’s life.  The civil money penalties in the present Senate Judiciary Committee bill can be as high as $25,000 per violation.  These penalties in turn may be increased still further by regulation if the business has had some labor or employment violation in the past. In the leaked administration bill, E-Verify penalties were tripled to $75,000 per violation if there were labor or employment violations in the past, so it is likely that this will be their goal.   These are potentially ruinous penalties that can destroy a small-business owner’s life savings. NSBA believes the penalties being considered show a lack of perspective.

Second, there should be a specific, reasonable limit on how long those receiving a temporary non-confirmation (TNC) should have to wait for the resolution of database errors.  It currently takes about 100 days to resolve database errors but if the use of E-Verify is made mandatory for all new hires, the time to resolve errors is likely to increase dramatically.  During that time, small businesses must retain the person in question knowing that it is more likely than not they will ultimately be found unauthorized to work.  Moreover, many American citizens will find their fundamental right to earn a living endangered.  If either the employee has presented a U.S. passport or two months have elapsed since an appeal of a TNC and the I-9 process has been complied with, then the employer should be able to hire the person without penalty or discharge the person without being subjected to lawsuits and liability.

Third, there needs to be independent measurement and evaluation of accuracy of the system combined with serious consequences if the error rate remains too high. Current error rates are so high that hundreds of thousands of American citizens each year will have to endure a bureaucratic nightmare simply to exercise their right to work. If error rates remain high, then it is appropriate that the mandatory nature of the system be relaxed.  This could be accomplished by a phased-in implementation with large employers first and a statistically valid, independent accuracy evaluation being conducted before the next stage is authorized. For example, employers with 500 or more employees could be required to use the system immediately.  If the error was less than 1 in 250, then the system would apply to employers of 250 or more.  If after a year, the error rate was less than 1 in 500, then the system would apply to employers of 100 or more.  And so on.  The final target should be at least an error rate of less than 1 in 1000.

Fourth, there should be a low- cost, administrative means for compensating employers and employees for actual costs incurred or wages lost because of E-Verify errors.

Fifth, there should be an ironclad protection against liability for small businesses that make employment decisions based on the mandates of the E-Verify employment verification system.  The current Senate bill provides this protection.

Sixth, there should an office at U.S. Citizenship and Immigration Services (USCIS) similar to the Taxpayers Advocate Service at the Internal Revenue Service. This office should be independent and have the authority to issue binding assistance orders to aid small businesses or employees when the USCIS bureaucracy runs amuck.

On Thursday, May 30 at 1:00 p.m. EDT, NSBA will host a teleconference on immigration reform to discuss the various immigration proposals and how they impact small business. The call will feature Alvaro M. Bedoya, Chief Counsel for the Senate Judiciary Subcommittee on Privacy, Technology & the Law. Please click here for more information and to register.

NSBA is urging small-business owners to contact their lawmakers and urge them to support pro-small-business immigration reform. Please click here today to take just a few moments to personalize NSBA’s draft letter and sent it to your Senators and Representatives.