Hitting the Pause Button on E-Verify

As of February 2013, roughly 429,000 employers are enrolled in E-Verify.  Currently, the (mostly) voluntary E-Verify Program, while growing steadily at over 1,500 enrollments weekly, still struggles to enroll a critical mass of employers given that 2010 Census data indicates there are more than 5.7 million businesses in the U.S.

It begs the question, “Why such low figures?”  The U.S. Citizenship and Immigration Services (USCIS), which administers the program, had conducted very prominent marketing campaigns to boost enrollment in the program.  One example was a release of customer satisfaction surveyconducted in January 2013, boasting its high ratings from users.  Bear in mind the survey randomly sampled only 1,300 employers while the verbatim comments from employers (see page 86 of the PDF) paints a very different picture.

The answers are probably varied but a recent article by the Minnesota Public Radio last week illustrates the challenges small employers still face when it comes to the free electronic verification program.  Given the enforcement climate, it’s understandable how some employers may be reluctant to openly criticize the program.  I caught up with Ms. DeAnne Hilgers, Partner at Lindquist & Vennum LLP, of Minneapolis, MN for more details on the challenges employers face when it comes to E-Verify.

Identity Theft

Ms. Hilgers highlighted an actual example of how the E-Verify system still faces challenges when it comes to valid documents that belong to somebody other than worker that was hired:

An employer on E-Verify for more than two years hired someone at the beginning of 2012 and sent his information through the E-Verify system.  E-Verify assured the employer that he was work authorized.  In Fall 2012, the company received a call from an individual who stated that this employee was using the individual’s stolen identification.  The caller provided a copy of the police report he had filed regarding his identification cards being stolen, including his Social Security information.  We informed the employee of this call and information, and provided him an opportunity to resolve this issue.  He [the employee] walked out.

While the E-Verify system is often touted as a free program to employers, there are certainly opportunity and operational costs associated with the program, especially when employees use documentation that is not theirs.

The costs to employers are significant, especially to smaller employers who do not have HR staff.  Often, that HR person is the company owner who is up to his or her elbows with their employees working to make the company successful.  When the employer loses an employee, they are losing twice the direct productivity – the lost worker’s and their own.

Enforcement Actions by ICE

I’ve written in the past many articles on how the government is monitoring an employer’s usage of E-Verify for potential non-compliance actions.  Often muddled is the interplay between USCIS, the agency that administers the E-Verify program, and Immigration and Customs Enforcement (ICE), the agency that enforces immigration laws.  Signing up for a voluntary program indeed places an employer under much more scrutiny and demands careful compliance.  Ms. Hilgers tells of one example how one employer’s attempt at compliance only led to further scrutiny by ICE.

A company new to E-Verify began verifying workers, but missed verifying a few at the beginning of the process.  What is clear is that the company was going through a few growing pains when it first started with E-Verify, but was making best efforts to verify its workforce.  ICE served a Notice of Inspection on the company.  Of three individuals hired shortly after the company enrolled in E-Verify, two who had been verified through E-Verify and one whose information had not been submitted were identified as undocumented workers.  ICE now claims that the company would have known that the third worker was not work authorized because E-Verify would have so informed the company.  Even though E-Verify failed to do so for two of the three workers who were verified but, it now turns out, were not work authorized.

The E-Verify Myth?

Ms. Hilgers is concerned about the perception Congress may currently have about E-Verify.  Given the many articles on recent immigration reform bills, her concern isn’t entirely unfounded.

E-Verify does confirm whether the Social Security Number exists, but it does not necessarily confirm that it belongs to the person presenting it.  In other words, E-Verify can identify fraudulent numbers, but it does not identify identity theft.  Like my clients above, E-Verify assured them that their workers were “verified” when in reality, the workers were not work authorized.

When Internet Is Lacking or Nonexistent?

For many employers, internet may not be part of their operational infrastructure.  [Gasps!  Oh the horror of no internet!]  What should employers do in that instance?  Ms. Hilgers confirms this is a big challenge should the government insist on mandating E-Verify nationally with the system as it currently stands.

Many of these employers are in the agriculture industry.  That means that they are literally hiring people standing out in the middle of a field, or some remote rural area where they may be stationed for a week or even a month to bring in a crop or construct a structure.  … They can complete a Form I-9 at the back of a pick-up truck in a field.   But conducting an E-Verify check requires internet access, which anyone who has experience in rural areas knows this can be sketchy.  Or they must take time off to drive to an area where they have a computer.  When the harvest season or construction season is at its height, losing productivity to get E-Verify done within three days is too expensive and too cumbersome.

Ms. Hilgers wonders if maybe a mandatory system might be setting up our country’s (small) businesses to fail?  Her concerns are shared by other groups critical of a mandatory E-Verify system that fails to modernize to address the current challenges in the system.

To the Senators’ credit though, the latest S.744 immigration bill certainly tries to address these challenges that exist with the current E-Verify System.  (Read my discussion here.)  The bill provides for mechanisms:

  • To deter identity theft and use of fraudulent documents
  • To protect employers who rely on the results of E-Verify in good faith
  • For employers without internet access to verify work eligibility of workers through other means

What’s your experience been using the E-Verify System?  Do you think S.744 adequately addresses the shortcomings of the existing E-Verify System?  Do you think the mechanisms built into S.744 would be successful?  Please send me your comments.  I’d love to hear from you.