On July 8, 2009, the Senate approved an amendment to the $42.9 billion fiscal year 2010 Homeland Security Appropriations Bill (H.R. 2892) that would permanently reauthorize the E-Verify program and require its use by federal contractors. E-Verify is a Web based system operated by the Department of Homeland Security (DHS) and the Social Security Administration which confirms a new employee's work authorization by comparing information derived from the Employer's Employment Eligibility Verification Form (the I-9 Form) against government databases.

Since the U.S. House of Representatives had voted to extend the E-Verify program for a period of two years, the two chambers will now have to work out their differences in a conference committee before any changes to the E-Verify program become law.

These actions are yet another indication of the government's emphasis on immigration compliance and send a signal to all employers that they will remain on the front lines of immigration enforcement efforts.

As an example, U.S. Immigration and Custom Enforcement (ICE) recently announced that it had issued 652 Notices of Inspection to businesses throughout the United States of its intent to audit their I-9 records. The targeted companies were selected as a result of investigative leads coming from disgruntled employees, complaints relating to identity theft, and employer filings of government labor certification applications to legalize the status of undocumented workers.

Debate on the DHS Appropriations Bill is ongoing, and additional amendments under consideration include the following:

  • E-Verify for All Employees – Sen. Chuck Grassley (R-Iowa) offered an amendment to alter the E-Verify program to allow employers to re-verify existing employees in addition to new hires. The re-verification of current employees through the E-Verify program is strictly prohibited under current law.
  • No-Match Amendment – Sen. David Vitter (R-LA) offered an amendment prohibiting the administration from using funding in the Bill to rescind the federal Social Security "No-Match" notices program. The amendment was introduced in response to Homeland Security Secretary Janet Napolitano's announcement that the DHS was rescinding the "No-Match" rule. First published in August 2007, the "No-Match" rule has been the subject of a lawsuit.
  • Religious Workers, Medical Students – Sen. Orrin Hatch (R-Utah) offered an amendment that would extend the special immigrant religious worker visa program and the Conrad 30 visa program for international medical students by three years.
  • EB-5 Investor Immigrant Visa Extension – The Senate approved an amendment that would make the EB-5 Regional Center Program permanent.

The Bottom Line: It is clear that Congress is taking a piecemeal approach to immigration in anticipation of the pending debate on comprehensive immigration reform. All of the progams extended through the DHS Appropriations Bill are important to our immigration framework, while the E-Verify amendments demonstrate that security is still a key component of any proposed reform. It appears, therefore, that Congress will need to focus on three fronts in order to achieve an acceptable solution: strengthening border security and law enforcement to stem the flow of illegal immigration; revamping the legal channels of immigration so that non-immigrant workers can lawfully and safely enter the country to work in areas of demonstrated need; and creating a practical path to legal status for undocumented workers living in the United States.