Today the House Judiciary Committee dedicated an entire hearing, albeit very late, on “How E-Verify Works and How it Benefits American Employers and Workers” in order to determine how to incorporate E-Verify into a comprehensive immigration reform (CIR) framework. Witnesses from USCIS, the private and non-profit sectors, and the U.S. Chamber of Commerce testified before the Committee today. The hearing’s objective seemed to be whittling down the aspects of E-Verify that needed major reworking (or repair) in order to incorporate the program into a CIR package and mandate it nationally for all employers.
Many of the witnesses agreed (some more eagerly than others) that if the federal E-Verify program were to be implemented on a national scale, then Congress should first ensure the problematic aspects of the program be appropriately fixed or addressed. Here are some highlights:
Identity Theft and Fraud
It seemed beating the dead horse worked: E-Verify is no sieve for identity thieves or fraudsters. A non-work-authorized employee could present legitimate List A/B&C documents belonging to somebody else, be ferreted through the E-Verify system, and successfully receive a “work authorized” indication. Congressional members heard this loud and clear and were eager to ask USCIS what its current timeline was to monitor social security numbers for frequent use and enable individuals to “lock” their social security numbers to prevent others from using it. USCIS, in response, indicated the SSN locking feature would be available later this year. [We’ll be monitoring the progress of this development for sure!]
Penalties for Misuse and Prescreening Prior to Hiring
What about all the employers who are collecting data from potential job applicants and running the data in the E-Verify system before a job offer is even extended in order to “make sure they are work authorized in the first place”? For now, there are NO penalties for pre-screening job applicants in E-Verify even though this practice is expressly prohibited by USCIS. Yes, you heard that correctly: prescreening is not allowed! Despite the lack of penalties, USCIS testified that the Monitoring and Compliance Unit actively investigates employers who exhibit potential patterns of misuse or abuse and may refer them for investigation by the OSC. (Read more about their investigations here.)
Verification of Existing Workforce
All non-government witnesses agreed that any mandatory E-Verify proposal that is incorporated into CIR should not require employers to verify their existing workforce. Whether for liability or logistical reasons, it’s hard to imagine employers wanting to do more extra work when not necessary. Although one Congressman argued that employers “should be able to do what they want and shouldn’t be told they couldn’t use E-Verify to verify their whole workforce….”
Although there appeared to be overall disagreement regarding E-Verify’s accuracy rate, there was overall consensus that the accuracy could still be improved. However, short of waiting for that improvement to occur, Mr. Johnson, of the U.S. Chamber of Commerce commented that the “perfect should not be the enemy of good.” Do you agree? Should we should implement E-Verify on a national scale as a mandate, even if it would adversely affect any number of citizens and legitimately work-authorized residents? Perhaps if a mechanism for workers who have been terminated as a result of inaccurate data to seek formal redress existed, this may be the compromise needed to push mandatory E-Verify forward.
Formal Redress Procedures post-FNC
Regardless of one’s status as a citizen or not, workers who have been terminated as a result of a Final Non-Confirmation (FNC) should be given an official process to seek redress if the incorrect data has led to their firing. There currently lacks a formal process for terminated workers to do this. It will be interesting to see what mechanism USCIS creates in response to this request.
Whether your organization is already enrolled, contemplating enrollment, or dreading enrollment in E-Verify, rest assured, the program we have today may not be the same one implemented and mandated nationally in the (near) future. USCIS may well be working double-time to address the challenges that have been raised in this meeting. Stay tuned for more updates on E-Verify. Subscribe to the I-9 and E-Verify Blog for free updates.