Mandatory E-Verify central to immigration reform

Employer representatives have testified before a congressional panel that they support the expansion of the federal government’s E-Verify electronic employment verification system, which experts agree will be a central piece of comprehensive immigration reform.

The employer groups spoke at the Feb. 27, 2013, hearing of the House Judiciary Committee’s Subcommittee on Immigration and Border Security. The U.S. Citizenship and Immigration Services (USCIS) official responsible for overseeing E-Verify also testified, defending the system’s merits and pointing to improvements that have been made to it in recent years.

However, a representative of an immigrant advocacy group cautioned that E-Verify still has problems, so if the government mandates its use, a broad legalization process must be established.

Support from both sides of the aisle

Committee Republicans and Democrats expressed their support for the employment verification system.

Judiciary Committee Chairman Bob Goodlatte, R-Va., noted in his opening statement that there is a general consensus among lawmakers and the White House that an employment verification system in some form should be part of any immigration overhaul.

“It’s vital that any immigration reform bill contain a quick and easy way for employers to check the legal status of their newly hired employees,” he said. “E-Verify is an easy and effective tool for American employers to use, and it should be expanded.”

Along with a national, mandatory electronic verification system, the congressman said employer sanctions will be needed to avoid repeating the “failures” of the 1986 Immigration Reform and Control Act.

“Although the infamous 1986 immigration overhaul promised sanctions on employers who hire illegal immigrants, those sanctions were never seriously enforced,” he said.

Subcommittee Chairman Trey Gowdy, R-S.C., said a functioning employment verification system is “a condition precedent for future reform efforts.”

Therein lies the potential rub. Ranking member Zoe Lofgren, D-Calif., emphasized that “the expansion of E-Verify can’t precede comprehensive immigration reform” but must happen in tandem with that reform.

Many Republicans, especially in the House, favor approaching an immigration overhaul in a piecemeal fashion with individual bills, rather than one comprehensive measure.

Lofgren said that if E-Verify were mandated before broader immigration reform, it would devastate the agricultural economy.

“If all growers were required to use E-Verify, we would confirm what we all know to be true: that American agriculture is built on the backs of undocumented immigrants.”

E-Verify earns high marks

USCIS recently announced that users of E-Verify lauded the program in a recent customer survey. More than 1,300 randomly selected employers across the nation who use E-Verify evaluated key program aspects, including registration, the online tutorial, ease of use, technical assistance and customer service. They rated the program as exceptionally high in overall customer satisfaction, with an average score of 86 out of 100 on the American Customer Satisfaction Index (ACSI) scale.

The USCIS official responsible for overseeing the program, Soraya Correa, updated the subcommittee on the agency’s continuing efforts to increase E-Verify’s accuracy and expansion.

Correa reported that the number of employers registered to use the E-Verify program has grown to more than 432,000 as of February 2013, compared with 24,000 in fiscal year 2007.

“We have seen a steady increase in the volume of queries,” she said, explaining that in FY 2012 E-Verify processed 21.1 million queries -- more than five times the 4 million queries processed in FY 2007.

“A common misperception of E-Verify’s accuracy rate is that the underlying government data is wrong whenever a mismatch -- or tentative nonconfirmation [TNC] -- is returned,” she said. However, a TNC only indicates that there is a discrepancy between the information provided to E-Verify and the information in one of the checked databases.

She said that USCIS continues to improve E-Verify’s accuracy by increasing the number of databases that the system checks. “As a result of these efforts, a review of FY 2012 data found that approximately 98.7% of prospective employees were confirmed as work-authorized, either automatically or within 24 hours.” The remaining 1.3% contained a mix of TNCs based on errors and TNCs indicating the person was not authorized to work in the United States. 

Preventing identity fraud

When government-commissioned research service Westat examined 2007 and 2008 data, it found that the program missed 54% of unauthorized workers, primarily as a result of identity fraud.

“USCIS takes extremely seriously the threat posed by identity fraud and has taken a number of significant steps to enhance program safeguards,” Correa said.

She mentioned the agency’s expansion of the photographic-matching tool to include U.S. passport photos. This allows employers to compare the photo displayed in E-Verify to the photo on the employee’s U.S. passport or U.S. passport card to determine whether the card was fraudulently produced, she explained.

In FY 2012 approximately 15% of all E-Verify cases used the photo tool.

According to the customer service survey, E-Verify users rated the photo tool highly as a method for reducing fraud. And the photo tool scored 95 points out of 100 from employers in ACSI’s 2012 rating of E-Verify. Employers found that the photo tool was easy to use (score of 95) and thought it was helpful in preventing fraud (score of 94). The photo tool was the highest-rated feature of E-Verify in the ACSI survey.

“USCIS is developing other methods for reducing fraud in E-Verify, such as monitoring Social Security numbers [SSNs] that are used repeatedly, evaluating other identity assurance techniques like those used in E-Verify’s Self Check and developing an enhancement to allow employees to lock their SSNs in E-Verify so they cannot be used by others,” Correa said, adding that the feature would be available later this year.

“These fraud-prevention efforts are proving successful,” she said, telling the subcommittee that a recent evaluation found that 94% of final nonconfirmations (FNCs) were issued correctly to employees not authorized for work.

A home builder’s experience

Christopher Gamvroulas, a homebuilder in Utah who testified on behalf of the National Association of Home Builders, told the subcommittee that once HR is trained on how to use E-Verify, it is “efficient, effective and easy to use.”

He said his company, Ivory Homes, based in Salt Lake City, has processed 320 employees through the E-Verify system since 2010 and only four of those came back with a TNC result -- and none of the four contested the result.

“Our HR department prefers E-Verify over the I-9,” Gamvroulas said. “It gives us a safe harbor. We can print out the confirmation letter, keep it in our files, and if we’re audited, we can demonstrate that we did things right.”

However, he did have recommendations for Congress in the case of a mandatory system.

Specifically, he urged Congress to make sure that any compulsory federal E-Verify program contains a robust safe harbor for employers so that those who use the system in good faith will not be held liable by USCIS, or by the employer’s workers, for system errors. He also said a mandatory program should allow employers to begin the E-Verify process when a worker accepts a position, rather than wait until after his or her start date. “Allowing us to verify our workers’ status the day they accept the job offer will give us more lead time to handle tentative nonconfirmations for those who are ineligible to work,” he explained.

Randy Johnson, senior vice president for labor, immigration and employee benefits at the U.S. Chamber of Commerce, told the subcommittee that the chamber supports the expansion of E-Verify.

“What we learned from our members was that the E-Verify system is greatly improved and, while not perfect, could be workable with continued technical improvements accompanied by specific, important legislative changes,” he said.

Johnson also pointed out that employers who are using the system “report that they have adapted to the system well, and I hear very little in terms of adverse impact on their operations.”

Screening of current employees opposed

Chamber members are adamant, though, that any expansion of E-Verify not include running E-Verify queries on an employer’s current staff.

“If you have 100,000 employees at a company, it’s extremely burdensome to run everyone through a reverification process,” Johnson said, especially since, presumably, those workers had already presented documents for verification on I-9 forms when they were hired.

Johnson also spoke about the value in eliminating the I-9 employment verification form as a separate requirement and suggested that there be a single employer obligation for employment-eligibility verification.

Presently, employers who use E-Verify have to complete the I-9 form and then transfer data from the I-9 into E-Verify. Congress would have to amend the law to integrate the I-9 into E-Verify. “Significantly, in order to accommodate all sizes and types of employers, E-Verify would need to be provided in a fully electronic version, integrating the I-9, and also be available by smartphone for small employers who don’t have separate human resources functions and for those employers making hires remotely,” he said.

Correa agreed and said that USCIS is working on an E-Verify smartphone app.

Not so fast: E-Verify’s hidden costs

Emily Tulli, a policy attorney at the National Immigration Law Center, testified that lawmakers should proceed with caution on mandating an electronic verification system because of “E-Verify’s database error rates, lack of worker protections, lack of due process, insufficient privacy protections and the significant amount of employer misuse of the program.” She said any mandatory electronic employment-eligibility verification system should, at a minimum, address these concerns and be coupled with a broad legalization program.

Tulli accepted USCIS’ assertion that it has significantly improved the program’s error rate but asked the subcommittee to remember that “behind this number are people.”

According to Westat, approximately 0.8% of TNCs are issued in error. Since employers made more than 20 million E-Verify queries in FY 2012, at least 160,000 workers were victims of an E-Verify error that they had to contact a government agency to fix or risk losing their jobs, she said.

The Westat data can also be used to evaluate the number of individuals who likely received a final nonconfirmation, Tulli said. An FNC requires an employer to fire the worker or incur liability for violations of immigration law. Of the 0.8% of workers who received a TNC in error, 0.3% were able to correct the error and keep their job -- meaning 0.5% of all workers received a final nonconfirmation in error. “In fiscal year 2012 approximately 100,000 workers likely received erroneous findings from the system and may have lost their jobs as a result,” she said.

Tulli also noted that employers are misusing the system by not notifying workers of a TNC and violating E-Verify program rules by “prescreening” job applicants -- running their data through the system -- before actually hiring them. In addition, “Employers readily use immigration compliance tools … to retaliate against workers who complain about mistreatment and to undercut workers’ efforts to improve their working conditions.”

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy

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