Marketwatch, November 2, 2016
Whatever you think of Donald Trump's proposal to build a wall on the Mexican border, there's another wall we can complete right now: E-Verify.
That's the name of the free online system that enables employers to check whether the people they hire are telling the truth about who they are. By entering the name, Social Security number, and date of birth of the new hire — something employers already have to collect — they get an answer in seconds about whether the person is an illegal immigrant or not.
This matters because jobs are the main reason foreigners sneak into the United States (or overstay visitor visas). And the large majority of the estimated 11 million illegals work on the books. So the harder it is for an illegal immigrant to get a job, especially an on-the-books job, the less appealing it will be to sneak in or overstay.
It was actually legal to employ illegal immigrants until 1986. The big immigration law passed that year contained at its heart a grand bargain: amnesty for illegals already here in exchange for banning the employment of new illegals. But since the only available way to check if your new hires were legal was with easily forged paper documents, crooked employers continued to be able to hire illegals with impunity. And legitimate employers had no real way of telling who was who.
Enter E-Verify, the product of many years of political pressure and technical development. With E-Verify, responsible employers can make sure their workforce is legal. And crooked employers will be easier to identify and punish.
But participation in E-Verify is still only voluntary. If you sign up to use it, you're required to screen all new hires, but you don't have to use it at all if you don't want.
Keeping E-Verify optional made sense at first: A big new system like this requires a long period of testing and experimentation before going national.
But E-Verify is now more than ready for prime time. The share screened by the program has been steadily growing, reaching about half of new hires nationwide last year. During the first three quarters of the fiscal year that ended in September, there were about 47 million hires, according to the Bureau of Labor Statistics; over the same period, the Department of Homeland Security reports about 24 million E-Verify cases.
What would it mean for employers if Congress made E-Verify mandatory for the other half of new hires? For most, not much. My own small business, the Center for Immigration Studies, has used it for years, and the additional effort is trivial. The only employers who would be genuinely inconvenienced by E-Verify are those who want to be able to keep hiring illegal immigrants while claiming not to know they're illegal.
For a look at what an E-Verify mandate would look like, we need only check legislation passed by the House Judiciary Committee in 2015 — the Legal Workforce Act of Rep. Lamar Smith (R-Texas). The bill, backed by the U.S. Chamber of Commerce, would phase in the mandate over several years, starting with the largest employers (i.e., those best able to handle a new HR process). Farmers would be given the longest lead time, which makes sense given the wider presence of illegal labor in certain sectors of agriculture.
An important part of any mandate would be a safe-harbor provision for employers. So long as they used E-Verify in good faith, they couldn't be fined for any illegals that did slip through the system. And by replacing the complicated paper I-9 system with a simpler online version, even fines for paperwork violations would be less likely.
Employers are already accountable for making sure their workers are legal, but the accountability is a sham. The point of E-Verify is not to punish employers, but to empower them. The vast majority who are responsible would finally know who they're hiring. The only ones facing punishment would be those who persist in hiring illegal immigrants.
In a sense, universal use of E-Verify would be a major step toward making legal status a labor standard. Few employers are tempted to hire children, after all, and that's only partly out of fear of punishment; it has become a social norm, a habit, not to hire kids. But while it's easy to tell if a job applicant is an 11-year-old, employers need E-Verify to tell if he's a legal worker.
Why isn't E-Verify already in use nationwide? Politics. Democrats in Congress have held E-Verify hostage to amnesty; they consider it a bargaining chip. But the source of the public resistance to amnesty is the belief — the certainty — that it would simply be a replay of 1986, with the promises of future enforcement dropped as soon as the amnesty was complete.
Mandating E-Verify would not only be an important enforcement tool, it would also be an important political step toward resolving our current immigration mess.