Last month,
President George W. Bush amended Executive Order 12989 in order to
mandate that certain public and private federal contractors use the
severely flawed and inaccurate Basic Pilot/E-Verify program to
verify the employment eligibility of all newly hired employees and
also to reverify the eligibility of existing employees working under
the contractor’s contract with the federal government. This action
is a significant change in policy and law that drastically alters
the current requirements of Basic Pilot/E-Verify and represents the
administration’s unlawful, unrealistic, and wrong-headed approach to
solving our nation’s immigration problems. This latest example
continues the trend of disregarding workers’ constitutional and due
process rights as the administration pursues its own brand of
enforcement-only strategies.
Congress
created Basic Pilot/E-Verify as a voluntary program that
employers could use to verify the employment eligibility of
newly-hired employees. Congress never intended the program to be
mandatory. In the past several months, numerous
government-commissioned reports, expert witnesses testifying at
congressional hearings, and other independent evaluations have laid
out in great detail the program’s shortcomings and why it isn’t
“ready for prime time.”
Yet in spite
of continuing evidence that the databases on which Basic
Pilot/E-Verify relies are plagued by inaccuracies and that a
substantial percentage of the employers using the program abuse it,
the president has opted to mandate that it be used by at least
200,000 federal contractors that employ approximately 4 million
workers in the United States. Moreover, the president’s order
directly contradicts existing laws that do not allow use of Basic
Pilot/E-Verify to reverify the employment eligibility of existing
employees, as well as congressional intent that the program be
voluntary. It also circumvents the existing legal process. It
constitutes a back-door approach to instituting a full-blown,
mandatory Basic Pilot/E-Verify system.
Furthermore,
this executive order is more far-reaching than any previous Bush
administration policy regarding E-Verify. This change applies to
private and public contractors. In addition to affecting
private businesses that contract with the federal government, the
order potentially affects every state, county, and other local
government that has a federal contract covered under the order or
that hopes to enter into a federal contract. The order mandates on
a large scale a system substantially abused by employers without
fixing the problems that lead to the abuse. As a result, employers
affected by the order may well engage in prohibited behavior such as
using the program for purposes other than verifying employment
eligibility or to prescreen employment candidates, resulting in
discrimination against workers.
In the past
six months, the administration has proposed regulations that affect
several federal programs and that pressure employers to use Basic
Pilot/E-Verify by making benefits employers derive from the programs
contingent on enrollment in Basic Pilot/E-Verify. Changes proposed
for the H-2A and H-2B visa category requirements, the Optional
Practical Training guidelines, and now the federal contractor
program all effectively mandate the use of Basic Pilot/E-Verify. As
the administration steadily expands mandatory use of Basic
Pilot/E-Verify, it has failed to realistically acknowledge the
damage such changes will have on immigrant and U.S. citizen workers
and our economy.
Imposing any
mandatory electronic employment eligibility verification system,
even if only on certain federal contractors, without providing a
path to legal status for the 7 million unauthorized workers in our
economy will lead to severe economic consequences for many
industries, force unauthorized workers further into the shadows, and
divert billions of dollars into the underground economy. At a time
when many workers and businesses are struggling because of the poor
economy, the president has chosen to ignore these realities and
forge ahead with his own misguided agenda. Bullying employers into
using Basic Pilot/E-Verify is simply one more “mission accomplished”
approach to a complex problem that cries out for and deserves real
solutions.
After
the president issued amended Executive Order 12989,
proposed regulations for implementing it were published in the
Federal Register on June 12, 2008. Comments by the public are
encouraged and may be submitted until August 11, 2008. More
detailed information on the program,
talking points, and
model comments to the proposed rule are available on NILC’s
website.
FOR MORE INFORMATION, CONTACT
Grisella M. Martinez,
Immigration Policy Analyst | 202.384.1277
