WASHINGTON - Five years after it took effect and more than a year after it was upheld by the U.S. Supreme Court, an Arizona law requiring that businesses check the citizenship of every new hire is often disregarded and rarely enforced.
The Legal Arizona Workers Act mandates that every business in the state verify the legal status of new employees against the federal E-Verify database, and lets the state strip licenses of businesses that knowingly hire undocumented workers.
But the Homeland Security agency reported that Arizona businesses used the database just 982,593 times in 2011 (the most recent data available), even though the Census Bureau said there were 1.5 million new hires in the state that year, a 66 percent compliance rate.
Fewer than half of Arizona businesses - 43 percent - had enrolled in the system by last month, according to Homeland Security figures and Census Bureau statistics on the number of Arizona businesses. That rate falls to 19 percent for businesses with four or fewer employees, or less than one business in five.
For businesses that chose to ignore the law there is little repercussion: The Arizona Attorney General's Office reported only two E-Verify cases since the law took effect in 2008.
"When we first introduced it, there were a lot of skeptics," said state Sen. Rich Crandall, R-Mesa, a co-sponsor of the legislation. "Even myself, I thought it was going to cause all sorts of problems.
"Not even did it not cause any problems, it doesn't do jack-squat. It possibly could stop people from applying for a job, but of course we can't measure that," he said.
But those less-than-impressive numbers are largely due to the way the law was designed. Unlike South Carolina, which audited thousands of businesses in 2012 for compliance with its version of E-Verify, Arizona designed its law to encourage business participation and avoid what Crandall called the "bureaucratic nightmare" of checking up on every business.
If an Arizona business is found to be employing undocumented workers, the state will not check to see if the employer used E-Verify - but the employer can use E-Verify as a defense.
"The thought was ... you can use it as a defense when (Maricopa County) Sheriff Joe (Arpaio) raids your business," Crandall said. "But I don't know of anybody that has been raided by Sheriff Joe and then said, 'Hey, I use E-Verify,' and they were in the system."
That creates "a little bit of a conundrum to how the state might enforce" the law, said Julie Pace, an attorney who represented several business groups in a challenge of the act that reached the U.S. Supreme Court in 2010.
"Arizona hasn't chosen to go down that path and hasn't spent any resources verifying whether people are actually using E-Verify or not," Pace said.
"South Carolina has adopted a program where they actually ask companies to demonstrate that they're registered for E-Verify," she said. "They look at the document to verify, so South Carolina has been a lot stronger on verifying companies than Arizona."
In Arizona, county attorneys and sheriffs' offices investigate businesses only on a formal complaint that a business is employing undocumented workers.
Arizona originally appropriated funds to educate businesses on E-Verify and to enforce the law, but that money has dried up. "Nobody was willing to put any money into it," Crandall said.
The steps to verifying, under the Department of Homeland Security's E-Verify system, that a new hire is legally able to work in the U.S:
• E-Verify checks both U.S. citizens and noncitizens. It can only be used to verify the eligibility of new hires, not job applicants.
• E-Verify must be used in a nondiscriminatory manner. If used, it must be used on all new hires, regardless of citizenship or immigration status. Employers using the system must inform all new hires of that and must display E-Verify posters in the workplace.
• After a new hire completes an I-9 form, the employer enters information from that form, plus a Social Security number and a List B form of photo identification into the E-Verify system.
• If the information entered matches with E-Verify, the new hire is eligible to work without any additional confirmation.
• If not, a tentative nonconfirmation, or TNC, is issued. The employer must notify the employee of the TNC; the employee can quit immediately at that point or move to contest the TNC.
• It is the employee's responsibility to contest the TNC. The employee has eight federal workdays to contest the notice. If the employee fails to contest the TNC within the eight-day period, the employer must fire the worker.
• If the employee contests the notice, the employer must supply him an E-Verify referral letter that lists his rights, how to contest the TNC and how to contact the government agency that will consider the claim.
• A TNC is to be kept private between the employer and employee. Until the challenge is finalized and a decision is issued, the employer cannot reduce or withhold the worker's pay, cut his hours, delay job-related training or be fired. If they are, an employee who is later verified can seek back pay or reinstatement.
• If the employee's status is confirmed after a TNC challenge, a verification is issued and the employee can continue working.
• If a final nonconfirmation is issued, the employee must be fired immediately.