Businesses often ignore E-Verify

The employers face little repercussion, illustrating the difficulty that efforts to restrict immigration face even in states where legislatures support it.

The four states are Alabama, Arizona, Mississippi and South Carolina. Arizona had the highest compliance rate of at about 58 percent for new hires in 2014. Alabama was second at about 57 percent, followed by South Carolina at 54 percent, while Mississippi’s was just 44 percent, according to data compiled by the Cato Institute, a libertarian think tank that supports looser immigration policies. South Carolina and Arizona’s rates dropped marginally from the previous year, while Mississippi’s compliance dropped a full point.

Officials charged with enforcing the requirement simply aren’t doing it, largely because they don’t want to hassle the businesses. “Non-compliance is mostly being ignored, just like non-compliance in other employment-based immigration enforcement schemes like the I-9 [federal employment verification report] are being ignored,” said Cato immigration policy analysts Alex Nowrasteh, co-author of a recent study on E-Verify.

Nowrasteh argues that the failure of all four states to achieve broad compliance shows the futility of such systems. He adds that even in cases when E-Verify is officially being complied with, the numbers may be suspect. South Carolina’s compliance rate rose from 73 percent in 2011 to as high as 97 percent in 2012 before falling to 55 percent in 2013, close to its current level. That volatility suggests problems with how compliance is reported, not trends among businesses, he says.

Dan Cadman, a research fellow with the nonprofit Center for Immigration Studies, which favors immigration restriction, did not dispute the numbers and largely agreed that the cause is lax enforcement, which he blamed based on a “cultural mindset” that compliance is not a matter of concern.

“Any number of employers who do not want to use it — either because they are skirting the margins or because it is a system they are not accustomed to or don’t want to get accustomed to it — then they are not going to comply with it it until it is clear that they have to,” Cadman said.

The rates show rising levels of compliance overall for the last few years, but it has leveled out over the last two years with some backsliding. The mandates are all fairly new as well. Arizona was the first to mandate E-Verify’s use in 2008. South Carolina followed in 2010, with Mississippi adopting it in 2011 and Alabama in 2012.

It is a touchy issue for many of those involved. Representatives for the four respective state agencies charged with enforcing the E-Verify mandates could not be reached for comment. Spokesmen for several business trade associations contacted by the Washington Examiner declined to respond as well.

E-Verify was created by Congress in 1996 as part of an immigration policy reform bill. The system compares an employee’s Social Security number with the data on file at the Social Security Administration. If the number is already in use or there is any other anomaly, the administration flags the number and alerts the employer. E-Verify does not itself say whether a person is legally eligible to work.

Ann Morse, director of the nonpartisan National Conference of State Legislatures’ Immigrant Policy Project, says that the state laws mandating its use were not well-crafted in terms of creating a working enforcement system but were “really protest votes against the federal government’s policy,” she said.

“There were no reporting requirements. There were no follow-up requirements in the legislation. It was a ‘We passed it and now we’re done’ kind of situation,” Morse said, adding that when she tried to contact state economic development agencies to get data on compliance with the mandate for a report a few years ago, “they just had no records.”

She added that the scope of the bills was much narrower than state lawmakers intended, with provisions often dropped to address the concerns of small businesses, such as ones with high employee turnover.

That has resulted in some significant loopholes in the laws. In Arizona and Alabama, the punishment for a business not using E-Verify is they become ineligible for state contracts, something a majority of businesses do not get anyway. In South Carolina, employers are punished for not using E-Verify, but there is no punishment for hiring an illegal worker.

Nowrasteh notes that employers do not have much incentive to comply in the first place. “The costs of enforcing these rules fall disproportionately upon businesses, which have the incentive and ability to lobby against those enforcement efforts,” he wrote in his Cato study, co-authored with Jim Harper, a senior fellow at the institute. While many voters in the states oppose immigration, they tend not to be as organized.

Consequently, there isn’t much incentive for state agencies to aggressively enforce it, the authors note, “even in states with harsh immigration enforcement reputations such as Arizona or South Carolina.” Mandates cannot change these factors, Nowratesh says, making further efforts to tighten enforcement through such mechanisms as E-Verify futile.

While it is illegal to hire somebody who is not legally eligible to work in the U.S., the federal government also has said that all employees, regardless of immigration status, are covered by the National Labor Relations Act, which makes it illegal to fire workers who try to invoke their rights under the law.

The National Labor Relations Board, the agency that enforces the act, said earlier this year that it will help facilitate temporary legal status for workers involved in labor rights litigation, effectively creating an incentive for them to make complaints. Thus, employers can face a legal minefield for firing workers flagged as potentially illegal.

Cadman argues E-Verify can be made to work effectively — it is simply a matter of finding leaders willing to apply it effectively. That lack of focus has been the problem all along. “Over the course of time, as [businesses] have come to believe that the federal government isn’t going to enforce sanctions laws, compliance has slacked off. I think what you are seeing is that being mirrored at the state level,” he said.