Still largely voluntary on a federal level, the E-Verify system emerged from the Immigration Act of 1990, a major overhaul of the U.S. immigration system. This established a commission that recommended a national registry for checking immigration status and employment eligibility. After a series of pilots, the program became available in 2003 to employers in all states as a voluntary database. Since then, a growing number of states have mandated its use, but industry pushback often narrows the scope of these mandates.
Previous attempts to strictly enforce E-Verify have unraveled in Florida. In 2020, when DeSantis pushed for a law mandating use of the database in the hiring process, it was strongly opposed by the Florida Chamber of Commerce and the Florida Fruit & Vegetable Association, for instance, until it was amended to exclude farmworkers.
“Once you register that you don’t have a social security number with the government, you become immediately deportable.”
The version of the bill that passed also created loopholes for private employers, prompting some to call it “E-Verify Light” and “Fake E-Verify.” Prior to that, two other efforts to require use of the database failed to pass. The reason is clear: The current E-Verify mandate could hurt Florida’s economy to a tune of $12 billion in just one year.
“[Florida’s E-Verify mandate] has always been defeated, and it’s not defeated by the immigrants that would be impacted,” said Paul Chavez, a lawyer with the Southern Poverty Law Center, representing a legal challenge to the law. “It has been defeated by the business community, including from lobbyists for farmers, tourism, and construction.”
“I can’t say for sure, but my understanding is that there will definitely be advocacy from the business community to try to poke holes in the E-Verify law, or even get it repealed,” added Chavez, who expects to see efforts to do so in the current legislative session.
Greg Schell, a lawyer who represents migrant farmworkers in Florida, thinks there is good reason to believe the E-Verify mandate will lack enforcement. “There are no regulations to guide employers,” he said. “It certainly would be plausible for an employer to claim that the returning worker is ‘grandfathered in’ and does not need to be the subject of an E-Verify inquiry.”
In other states, E-Verify mandates have often spared the agriculture industry and other industries dependent on undocumented workers, either by the law’s design or its lax enforcement. For instance, North Carolina passed a law mandating E-Verify in 2011, but carved out an exemption for “temporary seasonal workers for fewer than 90 days,” which would allow farms to continue employing, with less risk, undocumented people for seasonal work.
In 2013, this exemption was expanded to employees of less than nine months. Since then, North Carolina lawmakers have introduced several bills to carve out an even larger exemption for all farmworkers.
Presidential candidate Nikki Haley, who served as South Carolina’s governor between 2011 and 2017, has called for a national E-Verify mandate in her campaign. She often cites the law that she helped pass in 2011 as an example. “What we did in South Carolina with E-Verify was you had to verify that that person was in this country legally or else you could not hire them,” Haley said, in an interview with Breitbart. “That’s what we put in place in South Carolina and, more importantly, we enforced it.”
However, like in other states, South Carolina’s law doesn’t require E-Verify for every employee, exempting a number of essential jobs, including farmworkers and domestic laborers. “The S.C. Farm Bureau convinced lawmakers that the E-Verify requirement could scare off migrant workers needed to harvest crops,” The State reported in 2017. A representative from South Carolina’s Department of Labor confirmed that this exemption remains in effect today.
In fact, no state has been able to enforce E-Verify across every industry, without it backfiring. Take Georgia. In 2011, when the state attempted to enforce E-Verify for nearly all employers, it triggered a mass exodus of farmworkers and an estimated $140 million loss in agricultural revenue.
“Agriculture risks losing some of its most highly skilled workers.”
The expansion of E-Verify mandates is often framed, including by former Governor Haley, as a way to protect the jobs of U.S. citizens. Yet when this policy has prompted an exodus of undocumented farmworkers, U.S. citizens haven’t exactly jumped at the opportunity to work on farms. In fact, when E-Verify mandates are strictly enforced in agriculture, they have been found to lead to worker shortages, loss in farm revenue, and shrinking farm production.
“E-Verify is a way of sharing immigration status with the government that has no positive value for either the undocumented worker or the employer,” said Mary Jo Dudley, the director of the Cornell Farmworker Program. The consequences are most dire, of course, for the farmworkers who would face criminal penalties and a heightened threat of deportation.
“[For] farmworkers, E-Verify is a pathway to share information with the government that you’re deportable,” said Dudley. “Because once you register that you don’t have a social security number with the government, you become immediately deportable.”
Questions About the Future of Farm Labor
Despite the rippling economic consequences, the promised expansion of E-Verify mandates has become increasingly central to the GOP platform. Currently, Republican lawmakers in Iowa and West Virginia are pushing for state mandates, while DeSantis, Haley, and Chris Christie campaigned for a federal mandate. E-Verify is also part of the conservative playbook, Project 2025, which plans to “permanently authorize and make mandatory E-Verify” on a federal level if a Republican wins the 2024 presidential election.
As Congress tensely debated the latest border security bill, which was released by the Senate in early February, Republicans have repeatedly insisted on even more stringent proposals. In a recent letter, House Speaker Mike Johnson, a Republican from Louisiana, pointed to the Secure the Border Act (H.R. 2), a Republican-sponsored bill that passed in the House last year—which would federally mandate E-Verify, among other sweeping measures—as reflecting his core legislative demands.
But in recent years, even major bipartisan efforts to reform the immigration for farmworkers, namely the multiple versions of the Farm Workforce Modernization Act, have also included E-Verify mandates. First introduced in 2019, the legislation creates a path to citizenship for undocumented farmworkers, while streamlining the hiring of foreign agricultural workers with a temporary H-2A visa. Re-introduced and abandoned last year, the bill is a political compromise that has deeply divided farmworkers and their advocates, and one of the major sticking points is E-Verify.
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Author: Grey Moran