Immigration Enforcement Targets Employers

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The Chamber, along with several other business groups, has filed suit to halt efforts begun by the Bush Administration in mid-2008 to mandate that virtually all companies contracting with the federal government use E-Verify; not only would contractors have to use it for new hires, they would have to screen their existing workforces as well. The regulation would also impose liability on the companies if any of their subcontractors knowingly used illegal workers. There has been some question as to whether the Obama Administration would continue with those plans. Officials recently asked for a second 60-day extension, to June 30, to delay the implementation of the law while they study the impact. Amador says he welcomes the fact that members of the new Administration say they will address the database issues, "but no one believes the problems have been solved."

Arizona Experience

At the press briefing in Washington, Napolitano signaled that the DHS is likely to push ahead with broad implementation of E-Verify. In doing so, she made a nod to her experience as the governor of Arizona, where the controversy over E-Verify has been most intense. As governor, Napolitano signed into law a harsh measure aimed at cracking down on businesses that hired employees who didn't have the right to work in the U.S. Any business found to have twice knowingly hired illegal immigrants risked losing their license to do business in the state.

That Arizona law led to a huge outcry in the business community. Small and medium-size businesses in particular worried that they could be shut down if they inadvertently hired employees who had forged their Social Security cards or other documents; some even said they would refuse to invest further in Arizona if the law wasn't clarified to remove that risk.

Napolitano, who signed the Arizona bill to head off even more punitive measures brewing in the state legislature, concedes that it led to "a lot of hulabaloo" among Arizona businesses, though she points out that there has not yet been a case brought against a business under the law. More important, Napolitano argues, the law has been effective in getting businesses to sign-up with E-Verify.

"One-quarter of the U.S. businesses using E-Verify today are from Arizona," she says. "Since we want to encourage business to use E-Verify to establish lawful residency for the purposes of work, these kinds of things make sense." Napolitano added that simply having the law on the books made employers realize that the state was serious about enforcing immigration laws.

Broader Policy Initiatives

But Napolitano also made it clear that cracking down on illegal workers isn't her only priority when it comes to immigration policy. She has also instructed her staff to look more broadly at the administrative processes surrounding immigration. Among her goals, she said, is streamlining the procedures legal immigrants must go through to gain entry to or remain in the country. That means looking at such things as whether the existing visa programs are the right programs, whether the right numbers of the existing visa types are being granted, and whether there is enough flexibility built into the programs.

"There are a whole host of things that need to be looked at when you're looking at immigration law," she said. "If you look at our history, we will have immigration." The only real question is the legal structure under which that immigration will take place.

As for that other key question regarding Napolitano that is the subject of much speculation around Washington these days? Asked what it felt like to be on the short list for the Supreme Court, Napolitano was uncharacteristically silent. "My, these are really good eggs," she answered. "That's all I'll say."

Editor's Note: This story originally said that the E-Verify system is run by the U.S. Immigration & Customs Enforcement service. In fact, it is administered by U.S. Citizen and Immigration Services.

Sasseen is Washington bureau chief for BusinessWeek. With Moira Herbst in New York