Status of E-Verify in States Across the Country
Compiled by Kirsten Meyer
The use of E-Verify has been growing exponentially, in no small part due to the increase in state-initiated legal-worker laws mandating the use of E-Verify by employers to confirm the legal status of their new hires. The green light given to states recently by the Supreme Court in its Chamber of Commerce v. Whiting decision affirming Arizona’s Legal Arizona Worker Act is sure to encourage more states to pursue similar legislation. In states without mandatory E-Verify legislation, Federal contractors and sub-contractors are still required to use E-Verify as of January 15, 2009 under Federal law (Executive Order 12989), and other private and public employers may opt-in to E-Verify voluntarily. Here is our state-by-state breakdown of the status of E-Verify laws across the country.
Alabama: Widely regarded as the toughest state immigration law in the country, the Alabama Taxpayer and Citizen Protection Act (SB256) has a wide reach and the employer mandate to use E-Verify is but one component of it. Like Arizona’s LAWA which was recently affirmed by the Supreme Court, Alabama’s law includes a suspension or revocation of an employer’s business licenses as a penalty for violating the E-Verify requirement. Additionally, there is the potential to lose employee expensing for state income tax purposes. One unique aspect of Alabama’s law is that its mandate is effective for all employers by April 2012, regardless of size. Other states have phased in similar legislation over time based on the employer size, but Alabama did not take that approach.
Alaska: No legislation known to be on the radar. 427 employers currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Arizona: HB 2779 (commonly referred to as the Legal Arizona Worker Act). Passed in 2007, HB 2779 requires all employers to use E-Verify, effective January 1, 2008, and also prohibits employers from knowingly hiring undocumented workers. In 2008, a follow-on law HB 2745 was passed which prohibits government contracts to any businesses not using E-Verify, effective May 1, 2008.
Arkansas: In early 2009, State Representative Bill Sample (R-Hot Springs) introduced HB 1093 to require use of E-Verify by state agencies and prohibit contractors and subcontractors from entering into new contracts for services within the state on or after July 1, 2009 unless they use E-Verify. It was recommended for study on 4/7/2009 and no action appears to have been taken on it since.
California: Tim Donnelly’s (R- Twin Peaks) proposed state-wide legislation AB 26 and AB 1018 were defeated in the California Assembly’s Judiciary Committee on April 5, 2011. Already, a number of cities have passed ordinances extending E-Verify requirements to some or all public and private employers in their jurisdiction, including Mission Viejo, Hemet, Temecula, Escondido, San Diego, Murrieta, Riverside, Santa Maria, Lake Elsinore, Wildomar, and Lancaster. Other cities considering E-Verify ordinances include Costa Mesa, San Luis Obispo, Santa Maria, Santa Barbara, and San Jose.
Colorado: In 2006, Colorado passed HB 1343, requiring prospective contractors who want to do business with state agencies to use E-Verify to ensure the legal status of all employees. In 2008, SB 193 was passed, requiring contractors already holding state contracts to use E-Verify, effective August 6, 2008.
Connecticut: No legislation proposed at this time. Approximately 1,661 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Delaware: No legislation proposed at this time. Approximately 510 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
District of Columbia: No legislation proposed at this time. Approximately 1,521 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Florida: On January 4th, 2011, under Executive Order No. 11-02, Governor Rick Scott made Florida the 14th state to have a mandatory E-Verify requirement. It requires all state agencies under the direction of the governor to verify employment of all current and prospective agency employees through E-Verify. It further requires all contractors and subcontractors doing business with state agencies under the direction of the governor to use E-Verify to confirm employment eligibility of all persons employed by the contractor and subcontractors within the state of Florida during the contract term. State agencies not under the direction of the governor are also encouraged to voluntarily follow the same direction. Because portions of EO 11-02 were in conflict with federal E-Verify rules, on May 27, 2011, Gov. Scott issued Executive Order 11-116, amending EO 11-02. The new EO requires state agencies to verify the employment eligibility of all new agency employees through the E-Verify system. The Florida State Legislature considered no less than 30 bills related to immigration issues in the 2011 session, including at least three containing E-Verify provisions, but none passed.
Georgia: In 2006, SB 529 was passed, requiring public employers, contractors, and subcontractors to use E-Verify. The requirement was phased in between July 1, 2007 and July 1, 2009, based on the businesses’ number of employees. In 2011, HB 87 was passed, requiring all private businesses with over 10 employees to use E-Verify. The phase-in for this law is between July 1, 2011 and July 1, 2013.
Hawaii: No legislation proposed at this time. Approximately 722 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Idaho: In May, 2009 Gov. Butch Otter signed an executive order requiring all state agencies and contractors to use E-Verify if they wanted a share of the state’s economic stimulus bill budget. In December of the same year, Governor Jim Risch issued another executive order requiring that state agencies use E-Verify, effective immediately.
Illinois: Passed in 2007, HB 1744 bared Illinois companies from enrolling in any employment eligibility verification system (such as E-Verify) until accuracy and timeliness issues were resolved. The Department of Homeland Security subsequently sued, and on March 12, 2009, the U.S. District Court for the Central District of Illinois ruled HB 1744 invalid, because it conflicted with the federal Illegal Immigration Reform and Responsibility Act (IIRIRA). Illinois also enacted HB 1743, creating privacy and anti-discrimination protections for workers if employers misuse E-Verify. On August 24, 2009, S1133 was enacted to overturn the E-Verify ban, but prohibited the state or its localities from requiring employers to use an employment eligibility verification system, such as E-Verify. Despite the legal controversy, an estimated 6,061 employers are using E-Verify in the state of Illinois.
Indiana: In 2011, SB 590 was passed, requiring state and local agencies and contractors to use E-Verify. Additionally, private employers are required to use E-Verify in order to qualify for certain tax credits on their state income taxes. The new law is effective June 30, 2011.
Iowa: No legislation proposed at this time. Approximately 1,450 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Kansas: Currently proposed legislation: SB 181, would require the use of E-Verify, effective January 1, 2012. All state agencies, departments, boards, commissions, counties, and municipalities which are employers are required to enroll and verify all new employees (beginning Jan. 1, 2012) through E-Verify. Additionally, no contracts may be awarded from state agencies, counties, or municipalities to any contractor, bidder, or employer not using E-Verify for all employees on the contract. Other related proposed legislation includes HB 2223 and HB 2026. All three pieces of legislation were referred to the Kansas Legislature’s Committee on Federal and State Affairs early in 2011, but appear not to have been passed yet.
Kentucky: A proposed legislation last year, HB 321 passed the House but did not make it through the Senate. Approximately 1,545 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Louisiana: Passed in 2011, HB 342 requires all state and local contractors to use E-Verify. HB 646 requires private employers to either use E-Verify or check multiple forms of identification from the new hire, which must be kept on file.
Maine: No legislation proposed at this time. Approximately 427 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Maryland: No legislation has been successfully proposed at this time. Approximately 4,296 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Massachusetts: Although it does not mandate the use of E-Verify, EO 481, effective February 23, 2007, prohibits the use of undocumented workers on state contracts and requires that executive branch contractors certify that they will not knowingly use undocumented workers while performing the contract; will verify the immigration status of all workers without engaging in unlawful discrimination, and will not knowingly or recklessly alter, falsify, or accept altered or falsified documents from any such workers . Approximately 3,708 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Michigan: Although it does not mandate use of E-Verify, SB 229 (signed in October, 2007) requires state agencies to consider the immigration and residency status of persons employed by a prospective contractor and whether the use of noncitizen workers would be detrimental to the state. Approximately 3,178 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Minnesota: In January 2008, Gov. Tim Pawlenty issued an executive order effective January 29, 2008 that all hiring authorities within the executive branch of the state government, as well as any employer seeking to enter into a state contract worth in excess of $50,000 must participate in the E-Verify program. In Minnesota, executive orders expire 90 days after the signing governor leaves office. New Governor Mark Dayton allowed Pawlenty’s executive order to expire on April 4, 2011.
Mississippi: Passed in 2008, SB 2988 requires public and private employers to participate in E-Verify with full participation phased in by July 2011.
Missouri: Passed in 2008, HB 1549 requires all public employees to use E-Verify. Private companies and contractors knowingly employing someone unauthorized to work will have their business permit and licenses suspended for 14 days. Upon the first violation, the state may terminate contracts and bar the company from doing business with the state for 3 years. Upon the second violation, the state may permanently debar the company from doing business with the state.
Montana: No legislation proposed at this time. Approximately 464 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Nebraska: Passed in 2008, LB403 requires state and local governments and contractors to use E-Verify, effective October 1, 2009. The bill also includes incentives for private employers to use E-Verify.
Nevada: No legislation currently requiring use of E-Verify, although AB 383 (passed in 2007) provides administrative fines for business licensees that are found to employ illegal aliens. AB 383 also requires verification of an employee’s social security number. Approximately 1,817 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
New Hampshire: No legislation proposed at this time. Approximately 619 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
New Jersey: Some legislation has been proposed, including SB 2600, SB 2733/AB 189, and SB 1727/AB 2425, none of which seem to have been successful as of yet. Approximately 4,856 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
New Mexico: No legislation proposed at this time. Approximately 1,139 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
New York: Senate Bill 5497 and Assembly Bill 2217 were both introduced in 2011 and referred to the Civil Service and Pensions Committee. Approximately 6,886 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
North Carolina: Passed in 2006, SB 1523 requires all state agencies, offices, and universities to use E-Verify, effective for all employees hired after March 1, 2007. HB 36, passed in 2011, requires all employers with more than 25 employees to use E-Verify, with a phase-in period for private employers beginning October, 2012 and ending July, 2013. North Carolina cities and counties must use E-Verify by October 1, 2011. Seasonal workers (those employed less than 90 days in a consecutive 12-month period) are exempted from E-Verify.
North Dakota: No legislation proposed at this time. Approximately 335 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Ohio: No legislation proposed at this time. Approximately 3,952 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Oklahoma: HB 1804, passed in 2007, requires public employers, contractors, and subcontractors to participate in E-Verify effective November 1, 2007, and requires income tax withholding for independent contractors who do not have valid Social Security numbers. On June 4, 2008, the U.S. District Court for the Western District of Oklahoma issued an injunction barring the state from enforcing HB 1804, on grounds that it should be invalidated because it’s preempted by federal law. Oklahoma appealed the decision, and in 2010 an appeals court ruled that Oklahoma cannot enforce two provisions of HB 1804, but allowed a third part to be enforced. The part of the law that was allowed to stand is the part requiring employers to use E-Verify.
Oregon: No legislation at this time. Approximately 2,299 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Pennsylvania: HB 738 legislation has been proposed by Rep. Daryl Metcalfe, which would require all employers in PA to use E-Verify. It was referred to a committee in February, 2011 and appears not to have moved since.
Rhode Island: In March, 2008, Gov. Carcieri issued an executive order requiring executive agencies to use E-Verify, and for all persons and businesses, including grantees, contractors and their subcontractors, and vendors to use E-Verify. Shortly after taking office in 2011, Gov. Lincoln Chafee rescinded Gov. Carcieri’s executive order.
South Carolina: HB 4400 (passed in 2008) mandates the use of E-Verify for all employers by July 1, 2010. All public employers, private employers with over 100 employees, and public contractors with more than 500 employees were required to comply earlier, by January 1, 2009.
South Dakota: No legislation proposed at this time. Approximately 371 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Tennessee: Passed in 2011, HB 1378 requires all employers with at least 6 employees to use E-Verify. The phase-in begins in January 2012 and runs through January 2013. Companies that utilize legal guest workers do not have to use E-Verify.
Texas: No legislation approved at this time. Approximately 13,419 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Utah: Passed in 2010, SB 0251 requires all employers with more than 15 employees to begin using E-Verify on July 1, 2011. Companies utilizing legal guest workers do not have to use E-Verify. An earlier law was passed in 2008, SB 81, requiring public employers, public contractors, and subcontractors to use E-Verify, and making it illegal to discharge a lawful employee while retaining an unauthorized alien in the same job category. This law was effective July 1, 2009.
Vermont: No legislation proposed at this time. Approximately 186 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Virginia: HB 737, passed in 2010, originally required all state agencies to begin using E-Verify by December 1, 2012. On Monday, March 21, 2011, Gov. Robert McDonnell announced he will move the date up by 18 months, making it mandatory now by June 1, 2011. HB 1859/SB 1049, passed in March 2011, requires all state contractors with at least 50 employees and a contract worth at least $50,000 to use E-Verify.
Washington: No legislation passed at this time. Approximately 4,073 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
West Virginia: HB 2664 has been introduced this year but not yet passed. It would require all employers in West Virginia to use E-Verify, with effective dates phased in between January 1, 2012 and January 1, 2015, based on number of employees.
Wisconsin: No legislation proposed at this time. Approximately 2,268 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
Wyoming: No legislation proposed at this time. Approximately 344 employers in the state are currently enrolled in E-Verify, presumably a combination of federal contractors, public employers, and/or voluntary participants.
ETS & UCM Plus are tracking all state developments as part of our electronic I-9 / E-Verify program. To learn more about ETS and UCM Plus’ I-9 solutions which integrate with E-Verify, please contact Ross Henderson (r.henderson@employmenttax.com).
Any tax or legal information addressed here is provided solely as a courtesy summary and is not intended to be exhaustive in nature. Although this information was correct to the best of our knowledge at time of publishing, tax law and policy evolve rapidly and should always be verified for accuracy with the respective agencies. Please consult a tax professional for advice and information concerning your particular tax situation.