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Will E-Verify Legislation Still Pass This Session?

Despite a bevy of bills filed this session that would require Texas employers to use the federal electronic verification system known as E-Verify, the legislation has, so far, failed to advance out of committee — and the clock is winding down.

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Despite the growing clamor for Texas businesses to adopt a federal employment verification system that some say would clamp down on the hiring of illegal immigrants, state lawmakers say they need more time to evaluate the system.

More than a dozen bills have been filed that pertain to E-Verify, which is managed by the U.S. Citizen and Immigration Services and compares the information that potential workers submit to an employer on their I-9 — a federal document that collects employment-eligibility information — to records maintained by the Department of Homeland Security and the Social Security Administration.

But analyses of the bills by the Legislative Budget Board — and concerns some employers and lawmakers have over what they say is a flawed system — have prevented the bills from being passed out of committee.

“This is a very difficult issue. E-Verify is a tool but it’s not a fool-proof tool,” said state Rep. Byron Cook, R-Corsicana, chairman of the House State Affairs Committee, where 13 E-Verify bills have been referred. Less than half have had a hearing, and those that have were left pending before the committee.

The system currently is required only for employers with federal contracts, but the government says volunteer participation is growing. An April report from the Government Accountability Office estimated that E-Verify processed approximately 7.8 million applicants from nearly 258,000 employers from October 2010 to April 5, 2011.

The bills filed this session vary in what each would mandate — some only require employers with state contracts to use the system, others apply only to government entities, and others require all employers, including private employers, in Texas to use E-Verify. The penalties for knowingly hiring an illegal immigrant also vary: Some would revoke a business license, others would mandate fines for employers, and others would require termination for employers who don’t use the system.

In a summary of a February report, the GAO stated that the U.S. Citizen and Immigration Services agency has reduced what are called “tentative nonconfirmations” — an employee initially flagged as ineligible — and generally increased E-Verify accuracy. Errors still persist, the report stated, in part “because of inaccuracies and inconsistencies in how personal information is recorded on employee documents.” These errors include flagging potentially legal hires as ineligible and allowing several unauthorized workers to pass through the system.

Because of the lingering doubts, Cook said he’s asked several interested parties if they would be willing to research the system and what would be necessary to implement it correctly. Cook’s approach looks like the most likely option this late in the session with the deadline to pass bills out of committee approaching next week.

“I think that we have to get this right, and I am not convinced that what’s been proposed will get us there,” he said.

Some Texas business leaders also argue that mandating use of E-Verify is unconstitutional because immigration law is solely the jurisdiction of the federal government. An E-Verify-related lawsuit now before the U.S. Supreme Court, Chamber of Commerce of the United States v. Whiting, may be settled after the session, which Cook agreed may provide more guidance to states on what they can and cannot do. 

Lawmakers, including Cook, also point to E-Verify bills with significant fiscal notes as yet another reason to hold off on its implementation. State Rep. Patricia Harless, R-Spring, filed HB 1275, which would punish employers if they knowingly hired someone in the country illegally. Employers would be exempted from the penalties, however, if they attempted to verify eligibility with E-Verify within 14 days of the employee being hired. Her bill came back with a fiscal note in excess of $44 million. The Legislative Budget Board attributed the cost to additional work by the Texas Workforce Commission, which would be required to adopt rules and procedures and conduct hearings regarding E-Verify.

State Rep. Warren Chisum, R-Pampa, also filed a bill, HB 3252, that would penalize employers for hiring workers who are here illegally and included an exemption if E-Verify was used. Though similar in scope to Harless’ bill, the fiscal note was about $29 million.

Then there is HB 202 by state Rep. Burt Solomons, R-Carrollton. The bill prohibits state agencies from awarding contracts unless the contractor uses E-Verify. There is no fiscal note on his bill.

Some lawmakers, including Solomons, say the system is good enough to implement at some level to help address what millions of Texans say is a far-reaching problem.

“It’s pretty accurate and getting better all the time,” he said. “It seems that a lot of people in this state think this will solve the issue of hiring illegal immigrants. I think we should try to do something.”

Still, given where the Legislature is in the current session, unless some E-Verify bills are resurrected as amendments and attached to legislation that is scheduled to see floor action soon, the issue may well not be debated again until next session.

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