[Editor's Note: today's blog is courtesy of Amy Peck of Jackson Lewis LLP]
The United States Citizenship and Immigration Services (USCIS) has released an independent report of the E-Verify system, which highlights the successes, failures, and remaining challenges which employers face as the system continues to grow in both size and complexity. Prepared by the Government Accountability Office (GAO), this latest report features an in-depth look at the history of E-Verify (including advances in both in technology and outreach) and recent statistics based on a performance audit conducted from June 2009 through December 2010. The entire 81-page report, which includes the DHS responses, can be viewed here. For those of you who don’t have the time (or energy) for such large quantities of E-Verify consumption, here’s a quick look at the good, the bad, and the unresolved issues for E-Verify use in 2011 and beyond.
USCIS has reduced Tentative Nonconfirmations (TNCs or mismatches) from 8 percent during the time period June 2004 through March 2007 to almost 2.6 percent in fiscal year 2009 by expanding the number of databases queried through E-Verify (e.g., checking information on naturalized citizens), and instituting quality control procedures to screen for data entry errors. For example, E-Verify now requires employers to double-check their entry of information (what many refer to as a “second chance” screen). In addition, E-Verify automatically checks US passports (if presented) against State Department records to determine citizenship status, and apparently is smart enough to recognize European date formats and common clerical errors.
The numbers are encouraging: USCIS data indicates that about 97.4 percent of almost 8.2 million newly hired employees were immediately confirmed as work authorized by E-Verify during fiscal year 2009, compared to 92 percent during June 2004 through March 2007. Conversely, about 2.6 percent or over 211,000 of newly hired employees received either a SSA or USCIS TNC, including about 0.3 percent who were determined to be work eligible after they contested a TNC and resolved errors or inaccuracies in their records, and about 2.3 percent, or about 189,000, received a Final Nonconfirmation (FNC) because their employment eligibility status remained unresolved (either because their employer did not inform them, they independently chose not to contest, or they were in fact not eligible to work).
1. Erroneous TNCs
Despite the reduction of TNCs as a whole, it appears that erroneous TNCs (i.e., when it later turns out that employee was in fact work authorized) are still a way of life. According to the GAO report, inaccuracies and inconsistencies in recording employees’ names will continue to produce erroneous TNCs, absent some as-of-yet developed solution by USCIS. The reality is that employee information, like the E-Verify system itself, is often influx, due to marriage, divorce, or naturalization. It’s also not uncommon to find first or last name misspellings or other name variations (particularly for certain cultural groups) such as multiple surnames, hyphenated names, or abbreviated versions of names. In these instances, the TNCs may result because the employer is uncertain how exactly to enter the name into the system. Fortunately, USCIS has included information on its Web site to help employers enter various name combinations to reduce some of these. A screenshot of this help text is available here.
The impact of erroneous name-related TNCs cannot be ignored. According to USCIS, of 22,512 TNCs resulting from name mismatches in fiscal year 2009, approximately 76 percent, or 17,098, were for citizens, and approximately 24 percent, or 5,414, were for noncitizens. Using USCIS’s and SSA’s estimates that about 60 million queries would be generated annually under E-Verify if the program were made mandatory for new hires nationwide, about 164,000 citizens and noncitizens would receive a name-related TNC each year. That’s a lot of trips to the SSA Office! This is not even counting what would happen if E-Verify were made mandatory for all employees nationwide and not just new hires.
2. Employees are often unable to easily identify, access and correct their own personal information
In particular, the process for resolving DHS-related TNCs can be very time-consuming due to privacy protections (generally a good thing) in combination with the decentralized nature of DHS data. So for example, an employee wishing to determine which specific records led to the erroneous TNC may need to make separate Privacy Act requests to several DHS components that may have been the source of information involved in making the determination, because each DHS component maintains its own data and has an independent office in charge of responding to Privacy Act requests. It’s therefore no surprise that the average response time for these requests in fiscal year 2009 was approximately 104 days!
3. Employees may receive erroneous FNCs after a visit to an SSA field office
Employees who visit an SSA field office may still receive an FNC that is triggered automatically by the E-Verify system after the 8-day referral window. According to the report, SSA field office staff are not always aware that the employee is attempting to resolve a TNC, either because the individual does not notify staff that he or she is there for E-Verify reasons or does not provide field office staff with a copy of the TNC referral letter. As a result, staff may not make a notation in their backend system (EV-STAR) to extend the case beyond the 8 federal working days. In addition, even when SSA staff know that an employee is attempting to resolve a TNC, the staff do not always remember to access EV-STAR to update cases as pending. Fortunately, SSA officials are planning new procedures to address the issue of erroneous FNCs, including internal reporting on EV-STAR use, new training for field office staff on E-Verify, and an automated alert when an SSN is associated with a TNC (to be deployed during 2011).
4. Identity Theft and Employer Fraud
Despite the expansion of the photo matching process (which now applies to EADs, green cards and US passports), identity and employer fraud remain problematic. In theory, it sounds great: the E-Verify system displays a photo which must match the document presented by the employee. If it doesn’t match, the employer indicates so in the system and the employee receives a TNC. The problem? First, many unscrupulous (and undocumented) workers are now quite aware of the photo tool and so instead of presenting an EAD, passport or green card, they will simply show a driver’s license and unrestricted social security card (both of which can more easily be forged). The honest employer is then in a bind, because they cannot legally require the employee to present a particular document (although the report indicates that some employers in Arizona have been doing so). Even more troubling, the GAO also believes that bad-acting employers may be knowingly instructing undocumented workers to present certain documents which will not trigger the photo matching process.
To combat some of these issues, USCIS has been negotiating with the Motor Vehicle Association in one state to pilot the use of driver’s license data for E-Verify (sometime in 2011).
USCIS has been unable to negotiate with additional states to share driver’s license data or photographs due to individual state privacy laws. USCIS is also working on a program that would allow victims of identity theft to “lock” their Social Security numbers within E-Verify until they need them to obtain employment authorization. This program remains in the planning stages and is expected to be completed from fiscal years 2011 through 2012.
5. Employee Discrimination
Based on statistical information provided by USCIS for fiscal year 2009, the likelihood of noncitizens receiving erroneous TNCs was much greater than that for citizens. Given this issue, and USCIS’s limited mechanisms for correcting errors in personal information that have caused erroneous TNCs or FNCs, there is most definitely an increased potential for adverse impact on individuals’ civil rights and civil liberties. This risk is heightened further when employers engage in prohibited practices, such as limiting the pay of or terminating employees who receive TNCs, or prescreening applicants. Senior E-Verify program officials reported that they are working with OSC and subject matter experts on a task force to determine how best to extract information from the E-Verify transaction database to target issues such as discrimination. According to USCIS, as it improves its E-Verify technical capability, the agency will be better positioned to identify trends in discrimination. In the meantime, the agencies have developed a variety of outreach materials (Do’s and Don’ts, videos, hotline, etc.) to handle these issues.
1. Monitoring Employer Noncompliance
Over the past two years, USCIS has more than doubled the number of monitoring and compliance staff overseeing employers’ use of E-Verify but apparently, they still lack the appropriate technology to easily discern instances of suspected employer misuse. According to the GAO report, the USCIS monitoring and compliance staff are tasked with identifying trends in employer use of E-Verify that may indicate noncompliance. When these patterns are discovered, the staff may engage in various educational and outreach activities by sending employers a letter, calling employers, auditing employers’ E-Verify documentation, or making visits to employers’ worksites.
Unfortunately though, because the transaction data currently requires manual review, the Monitoring and Compliance Branch is limited in its ability to fully identify patterns and trends in the data. According to senior E-Verify program officials, the branch will have such capabilities by fiscal year 2012, through an estimated $6 million advanced data system which can conduct complex analyses of E-Verify data and automatically generate emails, letters, and other correspondences to be sent to employers in order to house “auditable data on instances of system misuse.” USCIS expects this system, known as the Data Analysis System, to automate about 80 percent of the Monitoring and Compliance Branch’s workload.
2. Future Costs of Mandatory E-Verify
The fiscal year 2010 DHS Appropriations Act reauthorized the E-Verify program through September 30, 2012, and provided USCIS with $137 million for program operations. Will this be enough in the event E-Verify becomes mandatory nationwide? According to the report, USCIS and SSA have developed life cycle cost estimates for the current E-Verify program, however, the GAO found that USCIS’s cost estimates do not reliably depict current E-Verify cost and resource needs or cost and resource needs for mandatory implementation. In addition, while SSA’s cost estimates substantially depict current E-Verify costs and resource needs, SSA has not fully assessed the extent to which its workload costs may change in the future.
To address these capacity-planning issues, the GAO recommends that the agencies finalize the terms of their service-level agreement, ensure that cost projections are comprehensive, well-documented, accurate, and credible, and properly assess the risk and uncertainty of SSA’s E-Verify workload to ensure that SSA can provide the required level of support to USCIS and E-Verify operations.
Despite calls for a more advanced and secure employment eligibility verification system (e.g., using biometrics), it appears that the E-Verify system is here to stay for the foreseeable future. And while it’s too soon to tell whether a mandatory E-Verify is in the cards for 2011, employers must nevertheless prepare themselves by implementing appropriate policies, procedures, and technology to address the potential pitfalls of an erroneous TNC or FNC as well as the possibility of identity theft or discrimination. The good news? USCIS is actively engaged in addressing many of the GAO’s concerns, and seems willing to work with employers rather than aggressively pursue them. Or in the words of USCIS Director Alejandro Mayorkas, “[W]e remain committed to continually improving E-Verify and enhancing this tool’s effectiveness for both workers and employers.” Amen to that!
 The watch-list of six E-Verify behaviors includes (1) multiple use of the same SSN across all E-Verify transactions, including use of the same SSNs to fraudulently obtain information using various biographic information; (2) employer failure to use E-Verify after registering with the program; (3) employer termination of an employee who receives a TNC; (4) employer failure to perform verification within 3 business days of hire; (5) employer verification of existing employees (for employers not subject to FAR); and (6) employer verification of employees hired prior to 1986.
To discuss this topic further or learn more about how an Electronic I-9 compliance & E-Verify system can help you meet federal and state law requirements, please call 877-725-4355 or click here. Our electronic I-9 experts and trusted attorney partners will be happy to address your unique I-9 and E-Verify challenges.