U.S. Senate Approves Several Amendments Dealing with Immigration Enforcement

By Hector A. Chichoni

On Wednesday, July 8, 2009, the U.S. Senate approved several amendments dealing with immigration enforcement and benefits that were not included in the 2010 homeland security appropriations bill (H.R. 2892) passed previously by the House of Representatives.

An amendment introduced by Senator Jeff Sessions (R-Ala) dealing with E-Verify was passed by a voice vote after a motion by Senator Chuck Schumer (D-NY) to table it was rejected 44 to 53.

Sessions’ amendment is extremely important because it could make the voluntary E-Verify program, in its present form, permanent and mandatory for all federal contractors beginning September 8, 2009.

The final federal contractor’s rule, which extends the use of E-Verify to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, came as a result of Executive Order 12989.  The rule was originally scheduled for rollout last January 15, 2009, but had to be postponed because of a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of Maryland challenging the legality of the rule.

The version of the bill passed previously by the House on June 24 would extend the E-Verify program for only two years. Thus, the existing differences between the amended version passed by the Senate and the House bill will have to be reconciled and a final version will need to be agreed upon in conference before changes can take effect.

Department of Homeland Security (DHS) Secretary Janet Napolitano announced early on July 8 DHS’ intention to rescind the controversial “no-match” rule in favor of the “more modern and effective” E-Verify. In a surprising but decisive response, the Senate also adopted an amendment from Senator David Vitter (R-LA) that would prohibit the DHS from using any fiscal year 2010 appropriated funds to rescind the no-match rule.

Schumer, who led the effort to table Sessions’ amendment, stated that declarations made earlier by Secretary Napolitano that the Obama administration would support a regulation that requires employers to use E-Verify in order to be awarded federal contracts had rendered the amendment “moot.”

The real reason for Schumer’s opposition, however, is that the Obama administration wants to enact immigration compliance laws that target employers, and Republicans, now the minority in the Senate, want to enact immigration compliance laws targeting employees.  But in a surprising move, supported by a few Democrat senators, all amendments dealing with immigration enforcement offered by Republicans were approved.

More concerning for employers, however, is the Obama administration’s apparent pursuance of a more capable and technologically advanced version of E-Verify.  Schumer has stated repeatedly that E-Verify does not “go far enough” and made clear on several occasions that he favors a high-tech employment verification system that employs biometric identifiers such as fingerprints, eye scans, and more.

Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool,” has also made clear, in agreement with Schumer, that “we need to continue to work to improve E-Verify, and we will.” This means that employers would not only be using E-Verify in its present form, but they could also be required to use a version with biometric identifiers that is linked to local and state law enforcement agencies enforcing immigration laws under section 287(g) of the Immigration and Nationality Act.

The possibility of an “improved” version of E-Verify does not seem farfetched when considered in light of present existing memorandums of understanding between governmental agencies that already allow for information sharing, passed joint raids, and an appropriations bill that provides for $5.4 billion to fund DHS’s employment verification activities.

Further, such an “improved” E-Verify, despite the potentially tremendous governmental invasion into the workings of private institutions, could give the Obama administration a serious footing in dealing with millions of illegal immigrants, which can be politically cashed at a later time.

So far it is unclear what immediate effects the Sessions and Vitter amendments would have if enacted. Both the federal contractor and No-Match Rules are currently suspended due to ongoing litigation.

Hector Chichoni is a partner and south region immigration practice chair in the Miami offices of Epstein Becker & Green, P.C. He practices U.S. and global immigration law.  Mr. Chichoni is also an author and frequent speaker and commentator on immigration issues at national and international forums and can be reached at (786) 282-3060.