Author: David B. Weisenfeld, XpertHR Legal Editor

One of the hottest employment law debates the past two years is whether states can compel employers to make use of the federal government's E-Verify web-based system to confirm an applicant's US work eligibility.

A much-scrutinized Supreme Court ruling upheld an Arizona law that imposed strict penalties on noncompliant employers, including the loss of their business license in the state for knowingly employing illegal aliens. Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011). A number of other states have followed suit with their own measures, especially in the South.

But where do the presidential candidates stand? There has been heated rhetoric on a host of issues this election cycle, and mandatory E-Verify laws go to the heart of the nation's immigration policy.

The Department of Homeland Security's website estimates that more than 409,000 employers nationwide are using the E-Verify system, with an estimated 1,300 new businesses signing up each week. Opponents, which include the US Chamber of Commerce, argue that the program places too big of a burden on employers. Others contend it is ineffectual in ferreting out fraud.

The Obama administration had argued against Arizona's mandatory E-Verify statute, claiming that federal immigration law preempts a state's ability to take action in this area. The president maintains that E-Verify's use should be voluntary except for federal contractors.

Meanwhile, Gov. Romney has lauded Arizona's mandatory E-Verify provision as a "model for the nation."

On September 28, 2012, President Obama signed a three-year extension of the E-Verify program into law through September 30, 2015. The program had been set to expire at the end of September 2012.

In June, the president also issued a directive that immigrants brought illegally into the US as children be granted work permits and be exempted from deportation. According to the Associated Press, this directive could benefit between 800,000 and 1.4-million individuals.

Gov. Romney has said that he would honor work permits granted to undocumented workers under Obama's policy who came as children. However, if elected, his administration would not accept new applicants. Romney also has promised to put a comprehensive immigration plan into place before those work permits expire.

Additional Resources

E-Verify Extended to September 30, 2015

Recruiting and Hiring > Preemployment Screening and Testing > Using E-Verify to Check Immigration Status

Recruiting and Hiring > Immigration, Form I-9 and Work Visas > E-Verify Process