The Senate’s complex immigration bill would instantly gut the popular E-Verify system that is widely used to exclude illegal immigrants from jobs, and then create an enforcement gap for several years before the arrival of a replacement system.
“There’s no doubt that the bill eliminates E-Verify immediately upon signing,” said Kris Kobach, secretary of state of Kansas, told The Daily Caller.
“If there’s no statutory authority for E-Verify, there’s no E-Verify,” said Kobach, a lawyer trained at Harvard, Oxford and Yale universities, and a prominent advocate for reduced immigration.
The claim is vehemently disputed by the bills’ advocates, including staffers working for Sen. Marco Rubio.
However, Rubio staffers were unable to show TheDC any text in the legislation that gives the current E-Verify system legal backing until the new system is mandated in several years.
The multi-year gap in E-Verify enforcement creates a political problem for Rubio and the other advocates of the Senate immigration bill.
The E-Verify rules are critical to Rubio and his allies as they try to pass their pending immigration revamp, partly because a large swath of the public is worried about the economic impact of immigrants, both legal and illegal.
An April 20-22 poll by Fox News of 1,009 registered voters showed that 55 percent of respondents want a reduction in the number of legal immigrants. That 55 percent includes 45 percent of non-whites and 62 percent of people without college degrees.
The new bill would sharply increase the current annual inflow of roughly 1 million immigrants and 650,000 company-sponsored, temporary workers for blue-collar and professional jobs.
The E-Verify system is voluntarily used by 350,000 employers to screen job applicants. It was created in 1997 as the “Basic Pilot Program,” and it uses the Internet to let employers compare job applicants’ claimed identities — and sometimes, their pictures — against a federal record of residents and citizens. The use of E-Verify is now mandatory in several states, including Georgia and North Carolina.
Despite the apparent multi-year gap in enforcement, Rubio has emphatically promoted the bill by highlighting its verification requirements.
“One of the things we’ve known for a long time is that the magnet that draws illegal immigrants to the United States is employment,” he said in an April 25 TownHall.com interview.
“This law mandates a universal E-Verify system. It is not an option, it is a mandate. They must do it,” he said.
“This bill requires the full implementation of a universal E-Verify system,” Rubio said on Mark Levin’s radio show April 17. Without a bill, he said, “you won’t have E-Verify.”
In several emails to TheDC, Rubio’s spokesman repeatedly denounced Kobach’s analysis. But the spokesman declined to supply bill language that shows how E-Verify is enforced once it is canceled, and before a replacement is developed by contractors, deployed by agencies and approved by the courts. A PDF of the entire bill is available here.
“The existing system will continue and will be enhanced along the way,” Alex Conant said in an April 23 email to TheDC.
However, despite repeated requests , Conant did not identify a paragraph in the bill showing how enforcement of E-Verify would continue uninterrupted once the program is canceled immediately after the bill becomes law.
“We create a transition from a temporary program to the permanent program,” he said next.
“That whole section of the bill is about creating a permanent E-Verify system,” he said in his next email.
Page “503 & 504 make clear that the transition & construction will not give people an opportunity in the system to stop using the system. This is clear to the business groups, the unions, and everybody else that has reviewed the legislation,” he said in an April 24 response.
Conant’s criticism was echoed by David Leopold, the chief counsel for the American Immigration Lawyers Association.
“The notion that the bill weakens [enforcement], it is flat out wrong and irresponsible,” he wrote to TheDC. “Kobach is wrong,” he added.
“It defies logic to think that [the government] would dismantle its E-Verify programs simply to rebuild them again. The provision in question clearly gives the agency the authority to continue the E-Verify programs in place,” Leopold said.
Leopold, however, did not cite a section showing enforcement would continue between the cancellation of E-Verify and the deployment of the new E-Verify system.
Kobach, in contrast, pointed to paragraphs that repeal the legal foundations for the current E-Verify program.
The paragraph that kills the E-Verify system is found on page 503 of the complex 844-page bill [pdf].
Under a section titled “REPEAL OF PILOT PROGRAMS AND E-VERIFY AND TRANSITION PROCEDURES,” the paragraph says “Sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) are repealed.”
That section strongly indicates the bill kills E-Verify, whose legal foundations rest on Section 403 of the 1996 law.
The next paragraph of the new bill says the new E-Verify system will be built on a 1965 law, and that current E-Verify users must use the new version.
“Any employer who was participating in the E-Verify Program described in section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 … shall participate in the [new] System.”
But that new system will not be mandatory for several years. The matching regulations have not been drafted and opponents have not yet lost their likely court cases against the new system, dubbed the Employment Verification System.
The verification regulations are to be published one year after the act is signed, according to text on page 519.
“Not later than 1 year after the date of the enactment of this Act … the Secretary, shall issue regulations implementing sections 3101, 3104, and 3105, and the amendments made by such sections.”
Section 3101 bars the “knowing” employment of illegal aliens.
Companies are required to comply with the new system after two, three or four years.
“Not later than 2 years after regulations are published implementing this subsection, all employers with more than 5,000 employees shall participate in the System … Not later than 3 years after regulations are published implementing this subsection, all employers with more than 500 employees shall participate in the System with respect to all newly hired employees and employees with expiring temporary employment authorization documents,” the bill says on page 423.
All companies will be required to use the system after four years.
The bill does not require current employees to be checked for eligibility.
Many observers estimate 7 million of the estimated 11 million illegal immigrants are in the labor force.
Lawyers disagreed over whether the bill creates an employee verification gap.
The bill “is not the easiest thing to summarize. … It is almost like it is written in another language,” said Greg Siskind, an immigration lawyer who has published a synopsis of the entire bill.
There’s no obvious section showing continued enforcement between the repeal of the existing E-Verify and the roll-out of the new system, he said, so “it may be that they need to change the language…to make it clear,” he said.
“I think that is intended [and] I don’t think you’ll encounter a lot of objections to make that clear,” he said.
Kobach also said the enforcement gap may be accidental.
“The bill was drafted by cobbling together bits and pieces of old bills to create the most radical and large amnesty proposal ever… I think this is a result of poor drafting,” he told TheDC.
Conant, however, insisted there is no problem.
“There will be no gap in service,” he wrote.
“On day one of the bill’s passage we start ramping up E-Verify. Big companies will all use it by year one, so and so forth so that everyone has to be using it by year 5,” Conant said.
