Washington » Mr. Hernandez is scared.

A dozen years ago, as a hopeful 18 year old, he fled his violence-ridden hometown in southern Mexico and came to the United States. A Utah resident for the past decade, he now speaks fluent English, makes a good living in the health care field, pays taxes, volunteers in his community and donates 10 percent of his income to his church.

But come July 1, Hernandez may run up against an employment roadblock that could wipe out his way of life. That's when a new state law kicks in requiring businesses to verify the legal status of all new employees and to turn away anyone found without the proper documents.

If companies comply, it will leave the estimated 100,000 to 120,000 undocumented immigrants in the state with just a few, hard options: find work that pays under the table, use fake documents or leave.

"It will be devastating," says Hernandez, who The Salt Tribune agreed to identify using his last name only because of his undocumented status. "I wouldn't be able to eat, to pay my rent -- the obvious things if I don't have a job."

And heading back to where he grew up -- where his last memory involves machete-wielding men breaking into his family home -- seems like no choice at all.

"It's so scary for me to go back," he says.

Businesses won't have much choice, either. While the law has no penalties for noncompliance, it specifically states that a company with more than 15 employees cannot hire anyone without running them through a verification system.

Most, if not all, will use E-Verify, a federal program gaining acceptance, which backers in Congress are considering making mandatory everywhere.

To some, E-Verify is the start of a cure; to others, a bandage; for the rest, a vigorous salt rub to a fresh wound.

The idea is to cut back on jobs for undocumented workers, and by extension, reduce the large population here illegally. Critics, though, warn of unintended consequences and steep human costs.

Juan Ruiz, president of the 380-member Latin American Chamber of Commerce in Utah, tells of a Mexican painter with a home and family in the Salt Lake Valley whose employer recently cut him loose out of fear the pending law could put his company in jeopardy.

"Small businesses may get scared and confused like this company did and let this young man go," Ruiz says. "If you look different, you may be laid off or fired."

On the other side of the paycheck, companies worry as well.

"Business owners in Utah want to comply with the law; they want to be good corporate citizens," says Monica Whalen, president and chief executive of The Employers Council in Salt Lake City, who notes that while there are no penalties for noncompliance, businesses will want to follow the law.

Still, she adds, "There is no question that this places not an insignificant administrative burden on employers, especially smaller to mid-size employers."

Then again, those concerned about the increase in undocumented workers say taking on the burden of checking workers' legal status is what's needed to ensure those who have a right to work get the job over those who don't.

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'Insurance policy' » Sen. Chris Buttars, R-West Jordan, and Rep. Chris Herrod, R-Provo, pushed SB251 through the Legislature, arguing that a crackdown on hiring undocumented workers would decrease the flow of those immigrants moving into the state.

Buttars said businesses that comply would be exempt from prosecution if they made a good faith effort to ensure their workers are legally on the job.

"It's like an insurance policy," Buttars said on the Senate floor. "You're protected -- why wouldn't you want that?"

Buttars had an agreement that Gov. Gary Herbert would call the Legislature back into special session this summer to make clear that the law was voluntary, but the governor later decided against it. He reasoned a one-day session wasn't sufficient for a full-scale debate needed for tougher, more comprehensive immigration legislation sure to be pressed by lawmakers.

Eli Cawley, head of the Utah Minutemen Project, says E-Verify is a "great tool" for getting rid of undocumented workers and says that it will push people to at least leave the state to find work.

He believes the Utah law isn't strong enough and wants to work toward a version with real teeth.

"If everybody adopted it and heavy penalties for enforcing it, it would go a long way to create a legal working force," Cawley said.

Estimates by the Pew Hispanic Center show that as of 2008, the latest numbers available, Utah has between 100,000 and 120,000 undocumented workers, about double the assessment from 2000. In 1990, the population estimate was just 15,000.

Critics of E-Verify say it will do little to decrease the undocumented population -- - 100,000 people won't just pick up and move, they argue -- but it could cause unintended consequences. Essentially, the program checks the information one enters in a federal I-9 form and runs it against government databases. Enter the right Social Security number to match the date of birth and the name of someone and you'll get clearance to work.

"If anything, it's going to make identity theft worse," says Ruiz. It's pushing people into identity theft. Before, they didn't have to do that."

Just three states now require all employers to use E-Verify, according to the National Conference of State Legislatures. Utah and nine others require some use of the system, mostly by government agencies and public contractors. The effects already are being felt in places like Oklahoma.

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Under the table » At Santa Fe South High School in Oklahoma City, students are starting to see and feel the impact on their parents of a state law requiring E-Verify use by public employers and government contractors and subcontractors.

Brenda, a 17-year-old who was born in the United States, says her father, who emigrated from Mexico, worked two jobs until he was fired from one because his employer retroactively checked his employment status, even though the law says it's for new hires only. The employer refused to pay him for his last two weeks of work, putting Brenda, a U.S. citizen, in the position of begging for her father's pay.

"I felt so humiliated because of that," she said recently, her eyes welling with tears and her voice cracking. "I had to argue for my dad."

Another student, April, also a U.S. citizen, says the exploitation has already begun. Her stepfather worked sunrise to sunset on a construction job for a week, only to find his employer refusing to pay him a dime on Friday.

"He basically threatened him, 'You're illegal; what are you going to do?' " April recounts.

On the other side of town, Marcelino Garcia, a Mexican native, became a U.S. citizen in the 1980s and built a successful chain of Mexican restaurants, employing about 500 workers at 11 locations. Now, after a run-in with the IRS, he's forced to use E-Verify and can't find enough kitchen staff who are legal to work.

The upstairs of his flagship store sits closed for now, his outdoor patio shuttered.

"It's been very, very tough," Garcia says. "We can interview 20 people and maybe only one person" can legally work.

In the meantime, he's had to hire ex-convicts with ankle-bracelet monitors to keep operating.

That hasn't been the experience of some Utah businesses who already use E-Verify. Currently, 2,400 employers in Utah participate in the program at more than 5,000 work sites, according to the U.S. Citizenship and Immigration Services. Those companies have logged more than 120,215 inquiries into the system just since Oct. 1.

The state's largest private employer -- The Church of Jesus Christ of Latter-day Saints -- uses E-Verify in Arizona, where it is required by state law, and will do so in Utah when SB251 takes effect.

At Zions Bank, one of the early adopters of the program, George Myers, senior vice president for human resources, says using E-Verify has added maybe 20 minutes to the hiring process but in many ways it duplicated efforts the company already made.

As a bank, human resources already had to check the validity of Social Security numbers and verify a new hire wasn't on any terrorist watch list.

"All of those forms, we were already doing it," Myers says from his sixth-floor office in downtown Salt Lake City. With the bank's 2,500 employees, Myers says the program has stopped a few people from being brought on, but most of the applicants flagged have been in error.

"We had a few situations where the Social Security number didn't match," Myers said, adding, "99 percent of that was young women who just got married."

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Congressional action » Rep. Ken Calvert, R-Calif., is the author of E-Verify's first incarnation, the Basic Pilot Program, and he's an ardent advocate of the successor system.

"It should be a national law," Calvert said. "We should do enforcement first to prove to the American public that we can enforce the law."

If the issue were brought to the House floor right now, Calvert says it would pass with 300 votes.

"Where it's put into effect, it works," he says. "What basically happens is people who are here illegally are unable to obtain a job."

Calvert may be right that a majority in Congress would back a national E-Verify requirement, but the central legislative players in the effort for comprehensive immigration reform -- Sens. Lindsey Graham and Charles Schumer -- are not fans.

"Good concept; unacceptable failure rate," Graham, R-S.C., said in a recent interview. "E-Verify is a step in the right direction but I think the ultimate solution would be a biometric Social Security card that would be used only for employment verification."

Key Utah lawmakers also support the premise behind E-Verify, though they harbor lingering doubts about the program's bugs.

"Businesses need a system like this to protect themselves from the liability of hiring illegal workers, taxpayers need it to protect themselves from stolen identities and legal immigrants need it to protect themselves from discrimination," said Sen. Orrin Hatch, a Judiciary Committee member.

Rep. Jason Chaffetz, who sits on the House Judiciary Committee, said a number of flaws remain to be worked out and the system must be simplified.

"The principle is right; the execution needs to be perfected," he said.

Graham and Schumer, D-N.Y., both say that since E-Verify only checks names against numbers, there's no way to know if the person applying for the job is the right person.

Mac McMillan, head of the U.S. Citizenship and Immigration Services Verification Branch in Washington, freely acknowledges that's a loophole in the E-Verify program it runs.

"E-Verify was not designed to prevent identity theft," he told The Tribune .

USCIS, however, is adding mechanisms -- manually through inspectors on the back end and technologically through photographs -- to provide more tools for verification, though it's not an overnight fix. "We're working hard to address that hole," McMillan says.

tburr@sltrib.com

E-Verify and the courts

States have faced several lawsuits over mandatory verification of immigrations status, though it's still unclear how Utah's new law will fare under judicial scrutiny.

The 10th Circuit Court of Appeals in Denver in a narrow ruling upheld Oklahoma's law requiring state contractors to use an E-Verify-type system; that appeals court also covers Utah. The 9th Circuit Court of Appeals also has upheld Arizona's law mandating that all employers use the system.

"The large question is 'Can Utah's E-Verify provision be upheld?' " says Roger Tsai, president of the Utah chapter of the American Immigration Lawyers Association. "What I read, based on the 10th Circuit decision, is yes, but under the condition that it's a very narrow ability."

The question of the law's constitutionality rests on whether the states are trying to control immigration enforcement -- a federal duty -- or, as Arizona argues, simply controlling employment enforcement by using a federal program. Either way, it's likely Utah's proposed law would be challenged at some point.

Good to go?

The 2007 Westat evaluation conducted for the Department of Homeland Security found that the accuracy of the U.S. Citizenship and Immigration Services database had improved substantially. But the error rate was still too high for it to become a mandated program.

The Social Security Administration estimated that 4.1 percent, or 17.8 million records, contained discrepancies related to name, date of birth or citizenship status.

Westat reported that for the July-September 2008 quarter, 96.9 percent of employees attesting to be U.S. citizens were automatically confirmed as authorized to work instantly or within 24 hours. The 2007 study noted significantly different rates for citizen and noncitizen cases. Only 72 percent of lawful permanent residents and 63 percent of immigrants authorized to work were confirmed automatically.

Source: The Conference of State Legislatures.