Lost amid the chaos of the longest federal government shutdown in American history is the lapse in funding for E-Verify, a focal point of immigration reform proposals.[1]  E-Verify is an “internet-based system that allows an employer to verify an employee’s work-authorization status.”[2]  The program works by cross-referencing employees’ information provided in their I-9 Forms against records held by the Social Security Administration and the Department of Homeland Security.[3]  E-Verify was established in November 1997 as one of three employment verification test programs created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).[4]  In authorizing the development of E-Verify, Congress aimed to “ensure reliability in employment authorization verification, combat counterfeiting of identity documents, and protect employee privacy.”[5]

The IIRIRA currently “prohibits the Secretary of Homeland Security from ‘requir[ing] any person or . . . entity’ outside the Federal Government ‘to participate in’ the E–Verify program.”[6]  However, recent legislative and executive actions have sought to amend or circumvent this rule.  In the 115th Congress, Senator Claire McCaskill (D-MO) introduced the E-Verify System Act of 2018, which proposed amending the IIRIRA to mandate the use of E-Verify nationwide.[7]  On the House side, both the Legal Workforce Act,[8] introduced by Representative Lamar Smith (R-TX), and the Securing America’s Future Act of 2018,[9] introduced by Representative Bob Goodlatte (R-VA), directed the Department of Homeland Security to create a mandatory employment eligibility verification system patterned on the current E-Verify program.  President Trump has also championed E-Verify, requesting $23 million in his Fiscal Year 2019 budget plan to “expand the E-Verify Program for mandatory nationwide use.”[10]

Proponents argue that a federal E-Verify mandate would effectively address a major pull factor encouraging unauthorized immigration into the United States—the prospect of obtaining employment—by punishing businesses that hire unauthorized workers.[11]  The underlying theory is that “if the demand for undocumented aliens declines, there may then be fewer incentives for aliens themselves to enter in violation of the federal immigration laws.”[12]  For example, Arizona instituted a statewide E-Verify mandate that led to a sizable drop in the population of unauthorized immigrants.[13]  Notably, the population of Hispanic naturalized citizens was not affected by the law, indicating that the impacts of E-Verify were limited to unauthorized immigrants.[14]  Additionally, a larger study of state-level E-Verify mandates conducted by the Federal Reserve Bank of Dallas found that “states with universal E-Verify policies typically experienced large reductions in the number of likely unauthorized immigrants and even greater declines in the number of unauthorized workers.”[15]  This finding falls in line with earlier research demonstrating a 46 percent decrease in unauthorized immigration to states approving E-Verify mandates.[16]

The ebb in supply of unauthorized labor would improve labor market conditions for citizens and authorized workers.[17]  The Supreme Court recognizes that “acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.”[18]  The Court’s observation is corroborated by data from an economic brief by the Federal Reserve Bank of Richmond indicating that the flow of unauthorized workers into the United States tends to “depress the wages of low-skilled natives and low-skilled immigrants already in the country,”[19] and that the benefits go to corporations and wealthy consumers.[20]  In effect, unauthorized immigration functions as a “redistribution of wealth from low- to high-skilled native-born workers.”[21]

These effects are often amplified among the most vulnerable citizens.[22]  In 2010, the U.S. Commission on Civil Rights found that, “[i]llegal immigration to the United States in recent decades has tended to depress both wages and employment rates for low-skilled American citizens, a disproportionate number of whom are black men.”[23]  Commissioner Peter N. Kirsanow commended E-Verify in particular for “level[ing] the playing field a bit for African-Americans.”[24]  State-level E-Verify mandates have similarly improved labor market outcomes for Hispanic citizens and authorized Mexican immigrants.[25] The future of a nationwide E-Verify mandate is unclear.  The two strongest Democratic supporters of E-Verify in the Senate, Claire McCaskill and Heidi Heitkamp, both lost their respective reelection bids in 2018.[26]  However, E-Verify continues to receive overwhelming support from the public, with 79 percent of voters supporting a nationwide mandate.[27]  Additionally, as the program’s accuracy and efficiency continue to improve,[28] longtime opponents of mandatory E-Verify, such as the U.S. Chamber of Commerce, have emerged as its strongest supporters, signaling that E-Verify has a growing support base.[29]  Although E-Verify may not immunize the government from future squabbles over immigration reform, the 116th Congress would be wise to consider it as a palatable compromise.

[1] Scott Wong, Shutdown halts E-Verify checks, The Hill (Jan. 2, 2019), https://thehill.com/homenews/house/423613-shutdown-halts-e-verify-checks-on-capitol-hill.

[2] Chamber of Commerce v. Whiting, 563 U.S. 582, 590 (2011) (quoting Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 862 (9th Cir. 2009)).

[3] See About E-Verify, E-Verify, https://www.e-verify.gov (last visited Jan. 19, 2019).

[4] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104–208, 110 Stat. 3009–655 (1996).

[5] Whiting, 563 U.S. at 609.

[6] Id. at 590–91 (quoting IIRIRA, § 402(a), (e)).

[7] E-Verify System Act, S. 3386, 115th Cong. (2018).

[8] H.R. 3711, 115th Cong. (2017).

[9] H.R. 4760, 115th Cong. (2018).

[10] Office of Mgmt. & Budget, Exec. Office of the President, Budget of the United States Government, Fiscal Year 2019, at 17 (2018).

[11] See U.S. Chamber of Commerce, Restructuring the U.S. Immigration System to Increase Security and Promote Economic Growth 9 (2015).

[12] Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893–94 (1984).

[13] See Sarah Bohn et al., Did the 2007 Legal Arizona Workers Act Reduce the State’s Unauthorized Immigrant Population, 96 Rev. Econ. & Stat. 258, 266 (2014).

[14] Id. at 267.

[15] Federal Reserve Bank of Dallas, Digital Enforcement: Effects of E-Verify on Unauthorized Immigrant Employment and Population 16 (2017), https://www.dallasfed.org/-/media/Documents/research/pubs/everify.pdf.

[16] See Pia M. Orrenius & Madeline Zavodny, Do State Work Eligibility Verification Laws Reduce Unauthorized Immigration?, 5 IZA J. Migration 1, 13 (2016).

[17] See Tracy Jan, Trump Isn’t Pushing Hard for This One Popular Way to Curb Illegal Immigration, Wash. Post (May 22, 2018), https://www.washingtonpost.com/business/economy/trump-is-very-weak-on-this-one-popular-way-to-curb-illegal-immigration/2018/05/22/adf5f85e-399b-11e8-acd5-35eac230e514_story.html?noredirect=on&utm_term=.f908871d076e.

[18] De Canas v. Bica, 424 U.S. 351, 356–57 (1976), superseded by statute, Immigration Reform & Control Act, 8 U.S.C. § 1324a (2018), as recognized in Chamber of Commerce v. Whiting, 563 U.S. 582, 588–89 (2011).

[19]  Santiago Pinto & Tim Sablik, Unauthorized Immigration: Evaluating the Effects and Policy Response,Fed. Res. Bank Richmond (Jan. 2018), https://www.richmondfed.org/publications/research/economic_brief/2018/eb_18-01.

[20] Impact of High Levels of Immigration on U.S. Workers: Hearing Before the Subcomm. on Immigration and the Nat’l Interest of the S. Comm. on the Judiciary,114th Cong. (2016) (statement of George J. Borjas, Professor of Economics and Social Policy, Harvard Kennedy School).

[21] Nat’l Acads. Sci., Eng’g, & Med., The Economic and Fiscal Consequences of Immigration 294 (Francine D. Blau & Christopher Mackie eds., 2017), https://www.nap.edu/read/23550/chapter/10.

[22] See Stephen Steinberg, Neoliberal Immigration Policy and Its Impact on African Americans, 23 Notre Dame J.L. Ethics & Pub. Pol’y 209, 214-16 (2009). 

[23] U.S. Commission on Civil Rights, The Impact of Illegal Immigration on the Wages and Employment Opportunities of Black Workers3 (2010),


[24] Impact of High Levels of Immigration on U.S. Workers: Hearing Before the Subcomm. on Immigration and the Nat’l Interest of the S. Comm. on the Judiciary,114th Cong. (2016) (statement of Peter N. Kirsanow, Comm’r, U.S. Commission on Civil Rights).

[25] See Pia M. Orrenius & Madeline Zavodny, The Impact of E‐Verify Mandates on Labor Market Outcomes, 81 S. Econ. J. 947, 957 (2015).

[26] See Geoffrey Skelley & Julia Wolfe, No, Democrats Didn’t Win The Senate. But They Did Better Than It Seems.,FiveThiryEight (Nov. 19, 2018), https://fivethirtyeight.com/features/no-democrats-didnt-win-the-senate-but-they-did-better-than-it-seems/.

[27] Scott Clement & David Nakamura, Survey Finds Strong Support for ‘Dreamers, Wash. Post (Sept. 25, 2017), https://www.washingtonpost.com/politics/survey-finds-strong-support-for-dreamers/2017/09/24/df3c885c-a16f-11e7-b14f-f41773cd5a14_story.html?noredirect=on&utm_term=.13be929d79ac.

[28] Andorra Bruno, Cong. Research Serv., R40446, Electronic Employment Eligibility Verification 9-12 (2018).

[29] The Legal Workforce Act: Hearing Before the Subcomm. on Immigration and Border Security of the H. Comm. on the Judiciary, 114th Cong. (2015) (statement of Randel K. Johnson, Senior Vice President, U.S. Chamber of Commerce).