Three Important Updates to E-Verify All Employers Should Know

With all the excitement, discussions and debates about comprehensive immigration reform, it’s easy to forget there are important developments that will ultimately (and significantly) affect employers.  Today, we’re reporting the top three latest developments that our readers should be aware:

1.     USCIS Is Monitoring Your E-Verify Usage

Part of the enrollment process for E-Verify requires entering into a Memorandum of Understanding with USCIS that includes allowing USCIS to monitor an employer’s E-Verify usage.  Back in July 2012, our guest blogger Attorney Anthony Weigel reviewed some of these provisions in detail. In its latest online update, USCIS once again remind employers that it is indeed monitoring employer E-Verify usage to “detect, deter, and reduce misuse, abuse, and fraud.”  In the event any misuse, abuse or fraud is detected, USCIS will not issue fines but will refer employers to the appropriate enforcement agencies for further investigation. How would you know if your organization was being monitored for E-Verify usage?  Your organization may be contacted by the Monitoring and Compliance Unit via telephone or email to participate in a site visit.

2.     Heavier Burdens Directed at Employers, including Mandatory E-Verify (or some version of it) on Immigration Reform

During the Senate Hearing last week on comprehensive immigration reform, Department of Homeland Security Secretary Janet Napolitano testified that any immigration reform must include a mandatory worker verification program (E-Verify or some version thereof) for employers, as well as increased prosecution tools against employers. In fact, Senator John Cornyn (R-TX) complained there were not enough prosecution tools against violating employers who hired unauthorized workers.

Meanwhile, Senator Lindsey Graham (R-SC) clarified that the government needed a worker verification system where employers could tell whether or not workers were legally authorized to work in a way that effectively dealt with identify fraud and identify theft.  While the current E-Verify system is very different from the one introduced in the late 1990s, the current system does not adequately address identify fraud and theft.  Senator Graham also agreed that employers who hired unlawful workers needed to be “hit hard” with penalties or other enforcement actions. The discussions at the House of Representatives two weeks ago were not very different when it came to promoting a mandatory worker verification program.

Though, much more pronounced was testimony from Julie Meyers Wood, who served as the former head of the U.S. Immigration and Customs Enforcement in 2006.  She testified to the House that in spite of ICE’s increased civil audits of Forms I-9 to help combat unlawful employment, the overall burden of enforcement against illegal employment should be shifted from employers back to the government. Ms. Woods testified that while E-Verify should be made mandatory, that system alone cannot combat unlawful employment practices. The E-Verify system imposes upon employers the burden of playing “amateur document detectives, and keeps employers guessing as to whether the steps they are taking are enough to ensure compliance or leave them crossing the ‘discrimination’ line with unintended consequences.”  No doubt our loyal readers can relate to this characterization of the state of worksite enforcement efforts. The real debate remains how Congress would alter the existing E-Verify program, if at all, or fold the program (as-is) into a mandatory provision of immigration reform.

3.     Alternatives to Mandatory E-Verify?

On the other side of the E-Verify argument have been opponents of E-Verify, including the American Civil Liberties Union (ACLU) who is concerned about the 1% error rate (approximately 1.5 million authorized workers) who would be negatively impacted by this “giant list of everyone who’s supposed to be authorized to work in the United States.”  The ACLU questions whether the government should be standing in the way of a (authorized) worker and her new job. More poignantly, the ACLU asks why businesses should be enforcing immigration laws when we don’t ask employers to go out and enforce the drug laws.  “Employers are not police officers except in this one context where we suddenly want them to be law enforcement officers.” As a better alternative, the ACLU proposes the government enforce labor laws against employers who hire unauthorized workers.  The lure of illegal immigration is a result of employers being able to skirt existing labor laws.  If you remove that incentive, then illegal immigration may end.  An employer may no longer have an incentive to hire undocumented workers if they are still subject to wage and hour laws and to provide those workers with appropriate benefits.

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Do you agree with the ACLU, Ms. Julie Meyers Wood or our U.S. Senators? Do you feel the onus of employment verification has been unfairly placed on employers?  Has your organization enrolled in E-Verify and are concerned about monitoring efforts by USCIS? To date, many articles have prominently featured the musings of experts, politicians and gurus on immigration (both legal and illegal).  We’re interested to hear from our employer readers.  Please send us your comments.