New State Law Prohibits E-Verify Mandates

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On October 9, 2011, California Governor Jerry Brown signed Assembly Bill 1236, also known as the “Employment Acceleration Act of 2011,” which prohibits the state of California and any of its special districts, cities or counties from requiring employers or other government entities to use E-Verify as a condition of receiving a government contract or applying for or maintaining a business license.

The new law also prohibits those same government entities from using E-Verify as a penalty for violating licensing or other similar laws. Assembly Bill 1236 is the first bill of its kind to go in the opposite direction of the many E-Verify laws enacted in other states.

However, California employers may still use E-Verify on a voluntary basis, and should still use it if required by federal law or if required as a condition of receiving federal funds. Additionally, there are many benefits to using E-Verify, such as minimizing the risk of hiring an unauthorized worker. Many of the obstacles to implementing and using E-Verify are eliminated with electronic employment eligibility solutions.

E-Verify, which became available to all 50 states on December 1, 2004, is an internet-based system operated by the Department of Homeland Security’s U.S. Citizenship and Immigration Services in partnership with the Social Security Administration that allows participating employers to verify electronically the identity and employment eligibility of their newly hired employees, regardless of citizenship.

In the last few years, particularly in 2008, many states began making E-verify mandatory for their public contractors. Specifically, all employers must use E-Verify in Arizona and Alabama, and enrollment obligations are phased in for all employers in Mississippi and South Carolina. Moreover, state contractors and subcontractors in Colorado, Georgia, Minnesota, Missouri, Nebraska, Oklahoma, Rhode Island and Utah are mandated to use E-Verify.

Implicit in the preamble to the bill, which cited the cost to employers of implementing E-Verify and the need to “pursue all avenues in facilitating and incubating job development and economic growth,” is the belief that the new law will create new jobs and remove apparent impediments to economic growth.

Regardless of its purpose, the future of California’s new law is uncertain. Indeed, House Judiciary Committee Chairman Lamar Smith (R-Texas) is advancing a proposal that would require every employer in the country to use E-Verify.

While the debate continues, employers must work closely with experienced immigration counsel to ensure they are complying with their Form I-9 and E-Verify obligations and continue to monitor legal developments in this evolving area of the law.

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