Recently the Subcommittee on Immigration Policy and Enforcement of the U.S. House of Representatives Judiciary Committee debated H.R. 2164, a Bill proposed by Texas Republican Rep. Lamar Smith which would mandate that all employers use the federal government's electronic E-Verify employee verification tool. H.R. 2164 would also increase penalties for knowingly hiring unauthorized foreign nationals. According to some observers, Smith's bill would have more impact on U.S. employers and their hiring practices than any bill since 1986's Immigration Reform and Control Act, which created the I-9 process.

During the subcommittee hearing, members of Congress and witnesses called before the subcommittee expressed a variety of perspectives on the bill. Rep. Smith, a longtime proponent of stricter immigration policy, noted that in some ways it can be easier to work illegally in the U.S. than to get medical care or do business with a bank, and that polling shows that Americans are overwhelmingly in favor of correcting this sort of fundamental absurdity in the U.S. immigration system. Subcommittee chairman Rep. Elton Gallegly argued that despite its added penalties, Rep. Smith's bill actually makes the employment verification process more fair for employers. This is because under H.R. 2164, employers would be permitted to make offers of employment contingent on clearance by E-Verify. Under current law, E-Verify can only be run after an employer is formally hired, leading to a number of complicated procedural and legal problems for employers when E-Verify cannot confirm that new employees are authorized to work.

Opponents of Smith's bill also spoke at the subcommittee hearing. Rep. Zoe Lofgren, the leading Democrat on the subcommittee, noted that mandating E-Verify does not address the fundamental reasons that employers hire unauthorized workers in the first place. Smith's bill, therefore, will serve no purpose other than to unnecessarily grow the government if it is not combined with measures designed to legalize the population of undocumented workers who can be exploited for "under the table" employment. Tyler Moran, the policy director at the National Immigration Law Center, agreed with Rep. Lofgren, stating that Smith's bill by itself would only serve to damage the U.S. economy by pushing illegal workers further underground.

With even prominent figures who generally oppose immigration to the U.S. split on H.R. 2164 due to issues they see with the bill's limitation of state and local authority over immigration, the future of this bill is unclear. However, all employers would do well to pay close attention to any changes proposed in the U.S. employment verification system in the coming months.

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