Capitol Hill

With Republicans in control of the House and Democrats holding a majority in the Senate, partisan gridlock on Capitol Hill has reached its highest levels in decades. As such, prospects for bipartisan cooperation regarding comprehensive immigration legislation do not appear favorable as is the case with many controversial issues.

With comprehensive reform legislation unlikely for now, Congress may turn its attention to more narrowly focused immigration issues. Most notably, legislation recently was introduced in the House and Senate aimed at strengthening enforcement of workplace immigration laws.

Introduction of the legislation comes in the wake of a recent U.S. Supreme Court decision that upheld a 2007 law passed in Arizona requiring all employers to use the federal E-Verify program to determine new employees' immigration status. The Arizona law had been challenged on the grounds that state and local jurisdictions were pre-empted from passing immigration enforcement measures by federal law. As a result of the high court decision, many states and localities are expected to move forward with laws to mandate E-Verify for employers.

Mandating E-Verify

House Judiciary Committee Chairman Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164), which would require all employers to use E-Verify. The House Judiciary Committee could take up this legislation sometime this year with House floor consideration likely to follow.

NRCA, a steering committee member of the Essential Worker Immigration Coalition (EWIC), has worked with Smith to address employer-related concerns with a mandatory E-Verify program. NRCA has supported E-Verify on a voluntary basis, and a vast majority of NRCA members who have used the program have not experienced significant problems. However, NRCA and other business groups have serious concerns with mandating E-Verify for all employers without incorporating certain safeguards to prevent serious administrative problems, especially for small businesses.

NRCA and EWIC have made great progress addressing employer concerns in H.R. 2164. Under this bill, mandated use of E-Verify would be phased in during a two-year period. Employers with 10,000 employees or more would be required to use E-Verify within six months of the bill's enactment; those with 500 to 9,999 employees would be required to use E-Verify within one year; those with 20 to 499 employees would be required to use the program within 18 months; and those with fewer than 20 employees would be required to use the program within two years. NRCA has concerns that even a two-year phase-in may be overly ambitious and is continuing to examine this issue.

Most important, the bill provides safe harbors from penalties for employers who use E-Verify in good faith. Additionally, the current limit on using the program before hiring is eliminated, so employers may use it to verify potential workers when an employment offer is made. State and local laws requiring E-Verify are pre-empted, setting one uniform standard and preventing a proliferation of differing requirements at the state and local levels. Additionally, a toll-free option is provided so small businesses can use E-Verify without incurring additional costs. And there is no general retroactive reverification requirement for current employees.

NRCA commends Smith for working cooperatively with the business community to craft a balanced proposal that minimizes immigration-enforcement burdens on employers.

In the Senate, Sen. Charles Grassley (R-Iowa) introduced legislation (S. 1196) that would require all employers to use E-Verify within one year of enactment. Such a short timeframe to ramp up participation among all U.S. businesses likely would prove to be unworkable and cause serious disruption for employers.

Moreover, the Grassley bill lacks safeguards designed to make E-Verify practical for employers. Enactment of the Grassley bill could be an administrative nightmare for many employers, especially small businesses such as roofing companies.

The best outcome

NRCA will continue working proactively with Congress to further improve the Legal Workforce Act and any other immigration-related legislation. Given the Supreme Court decision affirming that states may pass their own laws requiring E-Verify, enactment of federal legislation addressing key employer concerns may be the best outcome for the roofing industry.

Duane L. Musser is NRCA's vice president of government relations.