The Legislature is considering a ballot initiative to expand the use of federal hiring tool E-Verify in ways that raise significant legal questions.
If approved by voters in November, House Concurrent Resolution 2060 would require towns, cities and counties to run E-Verify on applicants for public welfare benefits and make agencies that issue licenses use the federal system, as well as mandate that employers use it for some self-employed contractors.
E-Verify is a web-based system where employers can check to see if their new hires are eligible to work in the U.S., and all Arizona businesses have been required to use it since 2008.
The proposed expansion into benefits and licensing, however, would conflict with federal law.
David Bier, an immigration expert at the Cato Institute, a libertarian think tank, said HCR 2060 is similar to past efforts by Arizona lawmakers to crack down on illegal immigration.
“I would say this is similar to SB 1070, in that it's going above and beyond federal law," he said. "This law is engaging in a type of immigration enforcement that is not envisioned under federal law.”
The law that created E-Verify decades ago specifies how the system can be used. Companies can’t use it to prescreen applicants during the hiring process, for example.
“They are only allowed to use E-Verify after they've extended the offer of employment to the employee, and the employee has completed the I-9,” said Jodi Bohr, an employment lawyer in Phoenix.
Every person hired in the U.S. for a job must fill out Form I-9 and verify they can legally work in the country.
However, self-employed workers, or independent contractors, do not fill out I-9 paperwork because they are not employees. HCR 2060 would require employers to also run E-Verify on contractors without valid Arizona driver’s licenses – putting those companies in a no-win situation.
“I think that there's going to be a conflict between state law and then the federal E-Verify, and so then you have to decide what's the lesser of two risks,” Bohr said. “And I don't know that I'd want to be violating federal law that has been established for a long time.”
If voters approve HCR 2060, Borh said, it would likely face legal challenges. She said she would tell employers to stick to their current practices “because the last thing you want is for the federal government to revoke your right to use E-Verify.”
Bier agrees the measure would end up in court.
“If SB 1070 taught the state anything, it should be that the state laws have to be in accordance with federal law, or they will be struck down.”
House Speaker Ben Toma, who is sponsoring HCR 2060, has said the measure is intended to close loopholes that enable businesses to hire people without legal status and to prevent them from obtaining taxpayer-funded benefits.
“Our message to illegal immigrants is simple: If you want to take advantage of Americans, go somewhere else,” he said last month at a news conference announcing the legislation.
Critics say the measure isn’t needed, pointing to SAVE, a free online service that agencies that issue public benefits can use to check applicants’ immigration status. SAVE is run by the U.S. Citizenship and Immigration Services, the same federal agency that administers E-Verify.
HCR 2060 has passed the House. If approved by the Senate, it will head to voters in November. Because it’s a ballot measure, the governor cannot veto it.
