Congressional Hearing Discusses Future of E-Verify

By now, most of our readers have at least heard of E-Verify, and a good many are aware of what it does: it’s an online system that allows participating employers to check the employment eligibility of new hires – as required by law – by comparing a name and Social Security number (SSN) against a collection of government databases. If the information entered doesn’t match the government’s files, a tentative non-confirmation (TNC) is generated, indicating that, either the person is not authorized to work in the United States or the discrepancy is due to an error of some kind.

To say the least, the system remains controversial. Questions about the accuracy and integrity of the databases on which E-Verify relies continue, and there are still concerns about the program’s fairness to employers and employees. Congress got an earful of these concerns at a February 27th hearing of the House Judiciary Subcommittee on Immigration and Border Security. Testimony came from across the political spectrum, including stakeholders from business and government, and advocates for undocumented immigrants.

A representative of the USCIS, the federal agency that runs E-Verify, testified that her agency has made substantial improvements in the program’s accuracy and ease of use. To help verify the identity of new employees, the system now includes an enhanced photo-matching tool that includes photos from U.S. passports and passport cards. The USCIS says it’s further strengthening E-Verify’s anti-fraud capabilities through a new program that will access licensing information from state motor vehicle authorities. The USCIS is also monitoring SSNs that are used repeatedly, to clamp down on identity theft and keep undocumented workers from passing around stolen IDs. [See Testimony of Soraya Correa, USCIS, before the House Judiciary Subcommittee on Immigration Policy and Enforcement, 27.Feb.2013.]

According to USCIS statistics, the agency’s efforts are bearing fruit: data from fiscal year (FY) 2012 indicate that “approximately 98.7 percent of all employees were confirmed as work authorized either automatically, or within 24 hours. The remaining 1.3 percent contained a mix of TNCs based on errors (whether employer, employee or government error) and TNCs where the person was not authorized to work in the United States.”

What’s most surprising is that the U.S. Chamber of Commerce, which long opposed mandatory expansion of E-Verify, is now expressing qualified support for the program. [See Testimony of Randel K. Johnson, U.S. Chamber of Commerce, before the House Judiciary Subcommittee on Immigration Policy and Enforcement, 27.Feb.2013.]  Randel K. Johnson, who testified on behalf of the U.S. Chamber, praised the USCIS for ironing out many of the system’s technical kinks, and for continuing its efforts to reduce inaccuracies, as well as the costs of participation.

The U.S. Chamber’s support is not unqualified, however; as they noted in testimony before the Immigration Subcommittee, there are several outstanding issues that they’d like to see resolved before they wholeheartedly embrace E-Verify. Among the Chamber’s concerns:

• Preemption
  The Chamber wants assurances that Congress will preempt the crazy-quilt of state measures that impose employment verification requirements in addition to federal law; lack of a unitary federal standard would place an undue burden on businesses large and small, they argue.

• Reverification
  Expanding E-Verify should not mean that every employer must “re-verify” all of their employees through the new system. This is burdensome, expensive, and redundant, the Chamber contends.

• Safe Harbors
  Businesses should not be liable for employment verification violations of their subcontractors, unless an employer knew about a subcontractor’s actions; moreover, any employer using E-Verify should be presumed to be acting in good faith, unless the government can prove otherwise, the Chamber says.

• Integrating I-9 With E-Verify
  In rolling out E-Verify, the government should eliminate the separate I-9 requirement, in the interests of economy and efficiency.

• Phase-in
  Employers should get at least three years to adjust to the new system.

• Agriculture
  A new and workable agricultural visa program should be in place before E-Verify is mandated, the Chamber maintains.

A cautionary note was sounded by a representative of the National Immigration Law Center (NILC), who argued that the program’s benefits were questionable, at best, since “… its use does not prevent employers from hiring unauthorized workers effectively.” In other words, in its current incarnation, E-Verify cannot prevent an unauthorized worker from using a borrowed or stolen SSN, along with the name of the rightful cardholder, to get past the employment eligibility check.

NILC, which advocates for the estimated 11 million undocumented immigrants currently living in the United States, would like implementation of E-Verify to be put on hold until there is a path to citizenship for those currently living in the shadows. They are concerned that E-Verify will push unauthorized workers further into the unregulated underground economy, robbing state and federal governments of tax revenue and driving down labor standards across the board.

It remains to be seen whether Congress will mandate E-Verify in the comprehensive immigration reform legislation currently being drafted on Capitol Hill. What’s notable about this hearing? It shows that although E-Verify remains controversial, it appears to be gaining traction – if not popularity – with a powerful business constituency, and that could make a big difference to the program’s future.

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