In 2021 Florida became the 22nd state to mandate employers use E-Verify, the federal system for checking the immigration status of potential workers.
The mandate applies only to state employers and contractors, but now Florida Gov. Ron DeSantis—ostensibly preparing for a presidential bid—wants to expand E-Verify mandates to include the private sector as well, part of a larger immigration package he announced at a news conference last month.
“Florida is a law and order state, and we won’t turn a blind eye to the dangers of Biden’s Border Crisis,” DeSantis said in a February statement.
But DeSantis and the Republican supermajority in Florida’s legislature faces opposition from a group that historically has often found common ground with the GOP—the business community.
How does E-Verify work?
The Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) operates E-Verify. In 1986 Congress passed the Immigration Reform and Control Act in, making it illegal for employers to knowingly hire anyone not legally authorized to work in the U.S., laying the groundwork for E-Verify.
The system relies on the Employment Eligibility Verification (or I-9) form that requires prospective employees to submit documents such as a driver’s license, passport, permanent resident card, or other employment authorization proof to an employer.
E-Verify runs I-9 information against records from the Social Security Administration and DHS. If the information matches, software alerts employers the employee’s identity is verified. If there is a data mismatch, employers are required to then notify workers that the system returned a tentative non-confirmation (TNC). Businesses are supposed to give workers eight workdays to resolve any discrepancies with the option of contesting the non-match with the government. If unsuccessful, the TNC turns into a final non-confirmation (FNC) and the employer is supposed to fire the worker or face fines. Employers who knowingly hire unauthorized employees risk losing their business licenses in some states.
Usage of E-Verify is mandatory for federal government agencies and contractors, but state laws are a different story. About two dozen states have adopted some form of E-Verify laws, with the majority requiring most employers to use it. Others mandate it for only public sector employers.
More than 976,000 employers are currently enrolled in the program, according to the program’s website.
What is Florida’s current law?
Then-Gov. Rick Scott, now a U.S. senator, issued a 2011 executive order requiring state agencies to use E-Verify.
Florida lawmakers went further during DeSantis’ first term in passing a law codifying the requirement for state agencies and state contractors, but they watered down an initial full-implementation proposal by requiring private employers to keep copies of employees’ work authorization documents for three years instead of implementing E-Verify.
DeSantis has called that law “inadequate,” telling the Tampa Bay Times it was a “compromise” with the agriculture, tourism, and construction industries. The Florida Chamber of Commerce and other employers criticized the proposal at the time as too onerous, and the business community is doing so again now.
“It’s hard to know if it’s a direct impact, but we have seen our labor shortage increase in key industries like construction, agriculture, and hospitality and tourism,” Samuel Vilchez Santiago, Florida director of the American Business Immigration Coalition, told The Dispatch.
If the new proposal passes, farmers are worried they’ll “have to close down because there’s just not enough people willing to do this job, this work, that are American citizens,” he said.
“All we are saying is we need to put our economy first. And I think the governor’s response is basically to put politics first, the economy last,” Santiago added.
Others expressed concern about increased bureaucracy.
“The only way it would affect me as an employer really is just being more burdensome,” Brendan Ramirez, CEO of Pan American Behavioral Health Services of Florida, said. “I’m already held to a pretty high standard. I mean, it’s not just about getting a picture of somebody’s driver’s license for me as a health care provider.”
Ramirez also worried about E-Verify incorrectly flagging workers and creating more red tape.
In 2017, about 52,280 employees received erroneous TNCs, usually due to data input errors and inaccurate records such as outdated last names. The number from USCIS doesn’t take into account those who didn’t contest an error or who were not informed of the TNC, according to the National Immigration Forum. That’s less than 0.15 percent of those who received a TNC (around 1.1 percent of the nearly 35 million cases from that year.)
How effective is E-Verify?
While E-Verify has been around for two decades, it’s difficult to analyze its direct impact on discouraging illegal employment.
Arizona’s first-in-the-country adoption of universal E-Verify mandate for employers in 2007 initially reduced the state population of all foreign-born and noncitizen Hispanic immigrants by 17 percent, according to a 2011 Public Policy Institute of California study. But the study also found that self-employment rates by “likely” unauthorized individuals rose, while others found “underground” work arrangements.
States like Mississippi (which implemented E-Verify in 2008) also showed a reduction in their unauthorized immigrant population, while other states like Georgia (2012) and the Carolinas (2012) have seen little if any decline, a 2017 report from the Federal Reserve Bank of Dallas found. Enforcement varies: In the state’s first three years using the program, only three employers in Arizona had been prosecuted for violations, the Federal Reserve Bank of Dallas noted. A 2012 audit found that about half of illegal workers nationwide relied on borrowing identification from legal workers to gain work authorization.
The Federal Reserve Bank of Dallas’ report found that E-Verify led to a pay reduction for illegal workers in Arizona—which supporters have noted could in theory disincentivize undocumented workers from skirting the system.
But wages for that group of workers still rose overall, the libertarian Cato Institute found in a 2019 analysis.
“They would receive a 253 percent wage boost by moving to America before the E-Verify mandate and a 240 percent wage gain after it,” Cato’s David Bier wrote.
Proponents say that the real problem has been states’ inadequate enforcement of and businesses’ inconsistent participation in E-verify. The Florida Department of Law Enforcement recently asked lawmakers for $1 million to hire more workers for E-Verify audits, the Tampa Bay Times reported.
“The E-Verify system is extremely effective,” said James Massa, CEO of NumbersUSA, an immigration restrictionist group. “Making people use it is a different question.”
Texas lawmakers have also recently filed legislation to expand E-Verify to private companies. “What these states are doing is taking away the job magnet,” Massa said.
Another question is whether whatever passes in Florida will match DeSantis’ rhetoric. On Twitter, the governor said he wants to mandate E-Verify for all employers, make it a felony for workers to use false identification in the process, and allow the government to revoke business licenses if an employer knowingly employs an unauthorized worker twice in a 24-month period, in addition to fines.
Different versions of the measure have been introduced in the Florida House and Senate this session. The Senate version, while requiring state employers to confirm their employees are legal, allows them to do so via E-Verify or an I-9 form. The House version explicitly requires E-Verify. Employers who violate the law would be hit with a $5,000 fine for a first violation, with more penalties for subsequent violations.
But the governor saw signs this week that his agenda on immigration would advance: On Wednesday, after a hearing the bill cleared a Senate Rules Committee vote along party lines. It will require one more committee vote before it reaches the Senate floor.
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