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Florida immigration law creates problems for HR, economy

A new Florida immigration law requires companies with 25-plus employees to use E-Verify to check work authorization status. Experts fear it could result in significant job losses.

A Florida immigration law that takes effect July 1 will require companies that employ 25 or more workers to use E-Verify, the federal government's electronic system that confirms if an employee is authorized to work in the U.S.

The law, recently signed by Gov. Ron DeSantis, might cause labor shortages in the construction, agriculture and hospitality industries.

For employers, the Florida governor's action "means that their onboarding process has got to change," said Julie George, a senior immigration attorney at Clark Hill in Pittsburgh. E-Verify has to be completed by an employee's third day of work.

While E-Verify only affects onboarding new employees, the industries most affected by the new law "have very high turnover," George said.

Using E-Verify will add more work to HR departments, she said. If it can't immediately confirm the eligibility of an employee, HR might have to contact the Social Security Administration and United States Citizenship and Immigration Services (USCIS), which oversees the E-Verify system, to troubleshoot while meeting the government's timelines for completing verification.

"That's the piece that has the potential for the most administrative burden," George said.

She said common E-Verify errors that prompt an employee's "tentative non-confirmation" might result from a married name on an I-9 form, or Employment Eligibility Verification form, that doesn't match Social Security records.

But E-Verify is also changing. USCIS is preparing to release E-Verify NextGen, which allows employees to directly enter I-9 information and documentation on a mobile app, shifting some administrative work away from HR. The system is "coming soon," according to the E-Verify website, but USCIS has not set a release date.

E-Verify was created in 1996 and is voluntary unless a state requires its use. Fewer than 10 states mandate that all employers use E-Verify, but many others require it for government employment and contracting work.

Regardless of whether they use E-Verify or not, all employers are mandated to confirm the authorization of an employee to work in the U.S., and they do so by filling out Form I-9 for new hires. Undocumented workers can present fake documents, such as a Social Security card, to meet requirements. Employers "are not expected to be a document expert" and "must accept documents that reasonably appear to be genuine," according to USCIS guidelines.

What's real and what's fake

If the government only requires employers to assess the validity of work documents using the reasonableness standard, legal experts said it's easy for an employee to use fake documents.

"Whether those documents are authentic or fake, no one knows for sure," said Mark Neuberger, an employment attorney at Foley & Lardner in Miami.

E-Verify electronically checks documents against government databases, such as Social Security, making it harder for people to use fraudulent documents.

Neuberger said the effect of the Florida immigration law on the labor market "all depends on how aggressively this is enforced."

But the Florida immigration law has additional complications. Some states issue a driver's license to undocumented workers, but Florida's new law doesn't recognize their validity. For an employer, this could mean an employee who drives for them might no longer have a valid license for the state of Florida, Neuberger said.

You can't be doing the worst of both, which is letting everybody in and authorizing nobody to work.
Peter DygaPresident and CEO, Associated Builders and Contractors Florida East Coast Chapter

Undocumented workers are now an essential part of Florida's labor market. The Migration Policy Institute estimates there are nearly 800,000 unauthorized people living there. One economic impact study of E-Verify estimated it could result in the loss of some 54,000 jobs in Florida's construction industry alone.

The construction industry is already scrambling to train workers to meet the demands of the federal $2.1 trillion infrastructure bill approved in 2021.

Peter Dyga, president and CEO of the Associated Builders and Contractors Florida East Coast Chapter, said the U.S. must change its immigration practices.

"One of two things has to happen: Either you've got to stop them from coming in or authorize them to work," Dyga said. "But you can't be doing the worst of both, which is letting everybody in and authorizing nobody to work."

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.

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