Federal Immigration Check Program Quietly Moving Through Congress

During the last Democratic presidential primary debate, a far-right group called NumbersUSA sponsored a slew of ads advocating for a long-sought-after xenophobic immigration policy: E-Verify. According to the website Broadcasting+Cable, NumbersUSA was the second most-seen brand during the debate, behind CNN.

Their prized policy requires employers to register their employees through a Department of Homeland Security-linked website to “confirm the eligibility of their employees to work in the United States.” This screens out undocumented workers, forcing them into the shadows. 

The concept grew out of Ronald Reagan’s 1986 Immigration Reform and Control Act, which required employers to examine identity and eligibility documents for new employees. A pilot program of an electronic version of the system was passed by Congress in 1996. In 2007, the federal government began using the program for all federal employees. And in 2011, the U.S. Supreme Court upheld Arizona’s statewide E-Verify mandate.

Since then, the program has spread to more and more states. States with some of the harshest immigration regimes—including Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, Utah, Tennessee—require all employers to participate. 

According to an analysis by LawLogix, a self-proclaimed leader in “E-Verify compliance and immigration case management,” the following states require some combination of their public employees and/or public contractors to participate in the program: Florida, Texas, Colorado, Idaho, Indiana, Minnesota, Oklahoma, Missouri, Nebraska, Pennsylvania, and Virginia.

New York, Michigan, Oregon, and Washington allow local governments to pass E-Verify requirements. Private employers can voluntarily participate in the program, subject to state regulation.

Quietly, and with little fanfare, the first-ever nationwide private sector E-Verify program is making its way through Congress. The House has already passed it. If it passes the Senate and gets signed by Trump, it will represent a coup for the far right, and set a powerful precedent for further expansion of such a program in the United States.

The E-Verify program lies within a so-called “compromise” immigration law passed by the House in December (the Farmworker Modernization Act, or FWMA). It reforms the federal H-2A farmworker visa program and would establish a nationwide E-Verify program for the entire agricultural industry.

It’s no wonder NumbersUSA, a proponent of population-based anti-immigrant rhetoric and which claims to have consulted with Trump, took out the ads during the last Democratic presidential debate.

They have been waiting for this moment. Watch one of NumbersUSA’s E-Verify ads here. 

The “compromise” within the bill, which Democrats are promoting, is a path to permanent residency for undocumented people who work within a revised agricultural immigrant labor visa program, for eight years. In the proposal, it would be up to employers to petition for their employees’ permanent residency. 

This labor-for-residency program is extremely problematic, as The Progressive pointed out in its coverage of the compromise bill.

United Farm Workers are supporting the bill as a compromise, citing the path to residency and how the bill would bring H-2A workers under the protection of the Occupational Safety and Health Administration’s Migrant and Seasonal Agricultural Worker Protection Act.

Other labor and farmworker organizations and unions have spoken out strongly against the compromise, including United Food and Commercial Workers, Food Chain Workers Alliance, Famlias Unidas Por La Justicia, Farm Forward, and Food First.

“Organizing farm workers and people in the food chain is difficult,” says Edgar Franks of Familias Unidas Por La Justicia, an independent farmworker union that works with H-2A workers and is advancing state regulation of the program in Washington State. “I think that if the FWMA passes it will make efforts to organize even harder.” 

Franks says the act will “solidify the grip of the bosses over the lives of workers. By making workers legal status dependent on being employed at a farm, it can set up a situation where the workers will become subservient and not speak up should there be an injustice. By raising your voice and speaking up you expose yourself as being an agitator.”

The bill is a political response to a growing labor crisis within the agriculture industry, due in part to immigration enforcement. There has been a dramatic spike in use of the federal H-2A farmworker visa program. 

In 2015, 139,832 H-2A visas were issued. By 2019, that number had ballooned to 257,667. This increase, combined with the labor shortages, has put pressure on the H-2A program, leading to the new proposal under the FWMA to vastly expand and standardize the program—including the launch of E-Verify for the entire industry. 

Under the version of the bill that was passed by the House, those who have worked in agriculture for at least ten years would have to work for an additional four years in the new program before they could apply for legal residency. Those with less than ten years of documented agricultural work experience would have to work for eight years.

The bill now awaits action in the Senate. Labor watch dogs are waking up to the issue, and calling for expert testimony on the dramatic changes. Whether the Senate will disrupt this compromise by introducing new changes is not clear—very little has been released.

Meanwhile, E-Verify continues to be a hot-button issue in the states, with Florida’s far-right anti-migrant Governor Ron DeSantis making expansion of his state’s E-Verify program a top priority this legislative session. E-Verify and the FWMA have yet to be raised in a meaningful way on the Democratic primary campaign trail. 

According to a Washington Post analysis, Bernie Sanders and Andrew Yang are the only candidates who strongly oppose E-Verify. Tom Steyer supports the FWMA, while others have not taken a definitive stance. The Food Chain Worker Alliance, with 31 member groups, representing more than 375,000 food workers in the United States and Canada, has taken a leadership role in opposing the bill. 

As Frank succinctly puts it, “We feel that E-Verify will hurt workers and the agricultural system.”