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What the Legal Workforce Act Would Mean for Employers

The U.S. House of Representatives Judiciary Committee passed the Legal Workforce Act on March 3 of this year.  The bill is designed to implement new regulations on employers as part of an overall reform of national immigration policy. Whether Congress will pass the bill as drafted is uncertain, but it is projected to reach the House floor for a vote during the Spring or Summer of 2015.  While not yet law, employers would be wise to familiarize themselves with its regulations. 

  • The E-Verify system would be replaced by the “Employment Eligibility Verification System” (EEVS) and its use would become mandated nationwide.
  • Employers and individuals would have to attest, under penalty of perjury, to the individual’s employment eligibility.
  • EEVS would be required to give employers temporary verification of employment eligibility within 3 days of hire and final verification within 10 days.
  • Certain employees who were not verified through E-Verify would have to be re-verified through EEVS.
  • How long a company has to comply with the Legal Workforce Act would depend on the size of the company.
  • New penalties would be imposed on employers for violations, and a ground for a good faith defense would be established.
  • Provisions for preemption by state or local law would be established.

Attestation of employment eligibility is a central requirement.  Employers would have to gather the individual’s social security number and additional documentation such as a passport, permanent resident card, State-issued driver’s license, military identification card, or other similar documentation. Then, the employer must complete a form for the Department of Homeland Security.  After completion of the form and extension of the job offer, the employer would have to enter the individual’s information into the EEVS system and await verification.  When the employer received final confirmation or non-confirmation from EEVS, they would have to record the appropriate code on the Homeland Security form.  In the event of a final non-confirmation, the employer would have to either immediately terminate the employee or notify the Department of Homeland Security. 

The employer would have to notify the individual of any tentative non-confirmation to allow the individual the opportunity to challenge the finding.  Should the individual decide not to challenge the finding, the employer may terminate or rescind their offer of employment. 

The bill would also require the employer to maintain a record of the individual's eligibility documentation for at least three years after hire to be made available to certain government officials upon request.  The bill allows perjury charges to be brought against any employer who falsifies an individual’s employment eligibility status. 

Individuals would have to attest to their eligibility status in a similar fashion.  Under penalty of perjury, the individual would attest to their status as a U.S. citizen, lawful permanent resident, or lawfully authorized alien by completing a form for the Department of Homeland Security. 

The bill mandates the re-verification of certain employees not verified through E-Verify.  Within six months of enactment, of Federal, State, or local government employees, those requiring a Federal security clearance or TWIC card, and those working in the U.S. under a Federal contract would have to be re-verified through EEVS if they were not verified through the E-Verify system. 

With the exception of agricultural employers, a company’s size is the factor that determines how long a company has to comply with the Legal Workforce Act.  The chart below lists company size relative to time to comply with law:                           

10,000 or more employees:             6 months

500 – 9,999 employees:                  12 months

20 – 499 employees:                       18 months

1 – 19 employees:                           24 months

Agricultural employers:                    36 months

The bill would impose civil and criminal penalties on employers who violate the bill’s requirements.  Civil penalties range from $2,500-$5000 for the first and second unauthorized aliens, unless the employers has a history of violations.  If the employer has such a history, they may receive penalties of $10,000-$25,000 per unauthorized alien.  Criminal penalties include fines of $5,000 for each unauthorized alien, imprisonment for up to 18 months, or both. 

Employers experienced with the E-Verify system may be apprehensive about compliance with the new EEVS system that would be created by the Legal Workforce Act.  In anticipation of errors, the bill would allow for a good faith defense that may lessen or eliminate potential penalties.  In short, employers would be considered to have complied with the requirements in good faith if they can show that a good faith attempt was made.  Examples of circumstances that would weaken an employer’s good faith defense would be violations of significant proportions, failure to take corrective action voluntarily or over 30 days after the Department of Homeland Security has notified of non-compliance, or repeated non-compliant behavior.

While the bill, as drafted, has met resistance from legislators representing states dominated by agriculture, it is expected to pass in the House.  Without addressing concerns raised by legislators who represent heavily agricultural states, the bill’s success in the Senate remains uncertain. 

The bill’s full text is available at:


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