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As Congress looks into mandating E-Verify — a voluntary Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. — NAHB on June 15 urged lawmakers to ensure that it is fair, efficient and workable and said this should be only one component in achieving comprehensive immigration reform.
Testifying on the "Legal Workforce Act" (H.R. 2164) before the House Judiciary Committee Subcommittee on Immigration Policy and Enforcement, Barry Rutenberg, first vice chairman of NAHB, said that Congress should not end its efforts to address immigration issues after considering a compulsory E-Verify program for all U.S. employers.
Rutenberg commended the efforts of Rep. Lamar Smith (R-Texas) to address the issue of legal workers, adding that, "E-Verify may be a first step, but it should not be the only step.”
“It is vitally important that Congress continue to work towards a revision and improvement of the nation's broken immigration and visa systems,” he said, “and to seek a pathway for workers to legally enter the United States when the economy needs them."
Introduced by Rep. Smith on June 14, the legislation is geared toward providing one uniform federal requirement for E-Verify use, supplanting the laws being considered by a growing number of states and localities that have been working to mandate the federal program using different rules and requirements.
NAHB strongly believes that the E-Verify program must continue to focus on the direct employer-employee relationship, holding every U.S. employer accountable for the identity and work authorization status of their direct employees, he said.
Under current law, employers are responsible for verification of the identity and work authorization status of their direct employees only. While employers do not verify the employees of subcontractors, they are precluded from knowingly using unauthorized subcontracted workers as a means of circumventing immigration law.
"The draft legislation maintains current law in this matter, and NAHB strongly supports that decision," said Rutenberg.
NAHB also believes that unauthorized workers should not be able to use state hiring agencies, union hiring halls and day laborer centers to facilitate finding a job.
"Employers should not be put into the difficult position of going through the effort and expense of obtaining a worker through one of these entities only to find out after the fact that the worker is unauthorized," said Rutenberg.
"The draft legislation currently under consideration requires that all entities who refer workers must also utilize the E-Verify system,” he said. “NAHB supports this concept, and urges the subcommittee to support this effort to make every entity accountable for the verification of workers that they refer for employment."
NAHB told lawmakers that any legislation requiring the use of E-Verify by all U.S. employers should include a strong pre-emption clause, preventing state and local governments from creating and enforcing their own versions of verification requirements for employers.
"If employers are going to be required to use the federal E-Verify program, they must be assured there is only one set of rules needed for compliance, those established by the federal government that are applicable nationwide, and not a series of various conflicting state and local government laws," he said.
A universal use of E-Verify by all employers nationwide would undoubtedly lead to a significant increase in errors as more and more workers are run through the system, testing the limits of its capacity.
NAHB therefore called on lawmakers to ensure that a compulsory federal E-Verify program contains a robust safe harbor for employers in order to ensure that those who use the system in good faith will not be held accountable by the Department of Homeland Security, or by the employer's workers, for errors in the E-Verify system.
"An employer who hires a worker who has cleared E-Verify and later turns out to be unauthorized, or who terminates an actual legal worker that E-Verify says is unauthorized, should not be penalized because the federal database was wrong," said Rutenberg.
He added that until E-Verify can detect cases of fraud, employers who use the system should not be held accountable for unauthorized workers who have cleared the system because of identity theft.
Since most NAHB members have 10 or fewer employees and many workers spend their days out on the job site, NAHB is pleased that under the draft legislation the system would operate through a toll-free telephone and other toll-free electronic media.
Further, NAHB believes that a mandatory E-Verify system must be phased in according to business size, ensuring that larger employers — who have human resource and legal departments — enter the system first and are gradually followed by smaller businesses in future phases.
"Moving the best-equipped businesses into the system first will provide a test of E-Verify's ability to handle increased demand, and will ensure the transition to universal use is not short-circuited by a systemic failure," said Rutenberg.
A reasonable phase-in period will also provide smaller employers time to learn about the new E-Verify requirements and how to use the online or telephone system, he added.
For more information, email Jenna Hamilton at NAHB, or call her at 800-368-5242 x8407.