Many states have passed laws mandating the use of E-Verify, which is normally a voluntary program for employers to use in the completion of the I-9 form. The I-9 form is used by employers for employment and identity verification of new hires. See I-9 form at: http://www.uscis.gov/files/form/i-9.pdf At present, the following states require employers to use E-Verify: Utah, Arizona, Mississippi, and South Carolina.
E-Verify is an internet based system operated by the Department of Homeland Security(DHS) that assists businesses in determining the identity and work eligibility of their new hires. [Please refer to E-Verify site provided by US Citizenship and Immigration Services (USCIS) at http://tinyurl.com/yslx4b]
To participate in E-Verify, an employer must execute a Memorandum of Understanding (MOU) with DHS http://tinyurl.com/43oxulo in which the employer must agree to, among other requirements: take the E-Verify tutorial, not to use E-Verify as a pre-screening tool for hiring decisions, require the presentation of I-9 List B identity documents with photos, to copy I-551 (permanent resident cards) or I-766 (employment authorization document) if presented for I-9 List A purposes, have employees record their social security numbers in section 1 of the I-9 form, and “cooperate with DHS and SSA in their compliance monitoring and evaluation of E-Verify, including permitting DHS and SSA, upon reasonable notice, to review Forms I-9 and other employment records and to interview it and its employees regarding the Employer’s use of E-Verify, and to respond in a timely and accurate manner to DHS requests for information relating to their participation in E-Verify.” Way too much access to information in my opinion….
What do employers get back for their participation in E-Verify?
1. “A rebuttable presumption is established that the Employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of the individual in good faith compliance with the terms and conditions of E-Verify.”
2. “No person or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith based on information provided through the confirmation system. DHS reserves the right to conduct Form I-9 and E-Verify system compliance inspections during the course of E-Verify, as well as to conduct any other enforcement activity authorized by law.” (from the MOU)
It is important to recognize that participation in E-Verify does not provide any sort of absolute protection from worksite enforcement actions or penalties. In fact, the data provided via employers into the E-Verify database is mined for enforcement actions.
Federal Legislative Mandates
Federal legislation has been introduced several times to change the current voluntary nature of E-Verify to mandatory. For example, HR 800 introduced by Representative Carter (TX), which has 24 cosponsors, in this 112th Congress makes the use of E-Verify permanent and mandatory.
In addition, it directs the Commissioner of SSA to:
To notify an individual that wages from two or more employers are being reported under the individual's social security account number (SSN), and
- Promulgate regulations to require that information regarding all multiple use notifications that lead to the identification of an unauthorized user of a SSN be shared with the Secretary of DHS.
The proposed bill would also amend the Internal Revenue Code (IRC) to:
Penalize specified employers for failure to correct information returns; and
- Prohibit employers from deducting from gross income wages paid to unauthorized foreign nationals, with an exception for an employer participating in the Program.
A useful analysis of the strengths and weaknesses of E-Verify was published in February by the Migration Policy Institute. Please refer to the report at: http://www.migrationpolicy.org/pubs/E-Verify-Insight.pdf Recently the House Immigration Subcommittee held a hearing on E-Verify http://tinyurl.com/44ppkl7. Richard M. Stana, the Director of Homeland Security and Justice for the U.S. Government Accountability Office (GAO), presented the GAO report entitled, “Employment Verification: Federal Agencies Have Improved E-Verify, but Significant Challenges Remain.” http://tinyurl.com/3tbjeka The report indicated that:
An effective employment authorization system requires a credible worksite enforcement program to ensure employer compliance with applicable immigration laws; however USCIS is challenged in ensuring employer compliance with E-Verify requirements for several reasons. For example, USCIS cannot monitor the extent to which employers follow program rules because USCIS does not have a presence in employers’ workplaces. 8 USCIS is further limited by its existing technology infrastructure, which provides limited ability to analyze patterns and trends in the data that could be indicative of employer misuse of E-Verify. USCIS has minimal avenue for recourse if employers do not respond or remedy noncompliant behavior after a contact from USCIS compliance staff because it has limited authority to investigate employer misuse and no authority to impose penalties against such employers, other than terminating those who knowingly use the system for an unauthorized purpose. For enforcement action for violations of immigration laws, USCIS relies on Immigration and Customs Enforcement (ICE) to investigate, sanction, and prosecute employers. However, ICE has reported that it has limited resources to investigate and sanction employers that knowingly hire unauthorized workers or those that knowingly violate E-Verify program rules. 9 Instead, according to senior ICE officials, ICE agents seek to maximize limited resources by applying risk assessment principles to worksite enforcement cases and focusing on detecting and removing unauthorized workers from critical infrastructure sites.
The Immigration Policy Center in its report entitled, “How Expanding E-Verify in the Stimulus Bill Would Hurt American Workers and Business, “ http://tinyurl.com/3nryw4g noted that mandating E-Verify is bad for the U.S. economy and listed the following points:
The U.S. Chamber of Commerce concluded that a federal rule that would have similarly expanded E-Verify would result in net societal costs of $10 billion a year. Small businesses – which employ approximately 50% of the U.S. workforce – would be disproportionately affected.
- The Congressional Budget Office (CBO) estimated that a mandatory E-Verify program would decrease federal revenues by $17.3 billion over 10 years due to the number of workers leaving the formal economy and working in the unregulated, untaxed underground economy
Texas Legislation introduced this session
Apparently, the lawsuit pending before the Supreme Court of the United States (SCOTUS) regarding Arizona’s mandate of E-Verify (Chamber of Commerce of the United States v. Whiting) http://tinyurl.com/6fmfnm3 and the rest of the information outlined above has not hindered our Texas legislators from following Arizona like a lemming heading to a cliff. Of course, back in July of 2010, an article in the Arizona Republic noted that even with the state mandate to use E-Verify, only a third of employers in Arizona had signed up. http://tinyurl.com/5syhsut
We have a variety of flavors to choose from among Texas bills. Everything from E-Verify light… for state contractors (HB 202 – Solomons) to a mandate under bills such as (HB 1272 – Miller) (HB 3129 – Price) (HB1888 – Miller) (HB 3240) etc. Query where the money is coming from in the state budget to enforce this idea?
The Bait and Switch
Wise employers approach partnering up with the government on compliance projects with caution. The cautionary approach to E-Verify in particular is advisable. In the case of the federal E-Verify “protections” provided to good faith employers, it is important to take a look at a few recent postings the Office of Special Counsel (OSC) of the U.S. Department of Justice, which has responsibility for the discrimination enforcement side of the house as to I-9 compliance. http://tinyurl.com/435wjnk The protection is illusory.
Some examples of employers found liable by the OSC even though E-Verify information was incorrect:
On January 21, 2010, OSC issued a letter of resolution dismissing a charge of citizenship status discrimination filed by a U.S. citizen against Dillard’s. This matter was originally handled by OSC as a hotline intervention. Dillard’s ran an E-Verify query on the citizen, which eventually resulted in a final nonconfirmation and, as a result, the worker was fired. During OSC’s intervention, it was determined that the charging party’s name had been misspelled when the query was originally submitted to E-Verify. Following the intervention, the E-Verify query was resubmitted using the correct name and the citizen was rehired. However, because she had missed a week’s work, she filed a charge with OSC seeking back pay. As part of the bilateral agreement between the parties resolving the charge, the charging party received $596.40 in back pay, representing the wages that she lost between her termination and the date she was rehired. (Estero, FL)
- On March 23, 2010, OSC issued a bilateral resolution dismissing a charge of document abuse and citizenship status discrimination filed by a LPR against Crestwood Suites. The lawful permanent resident alleged that Crestwood Suites terminated him after it ran his name through E-Verify and received a FNC. The parties entered into settlement agreement resolving the charge under which the charging party was reinstated and received full back pay of $3,200. (Durham, NC)
- On June 18, 2010, OSC issued a letter of resolution to The Pantry, Inc. (Pantry), dismissing a charge of document abuse. The charge alleged that the Pantry terminated the charging party, a U.S. citizen, after he received a TNC from E-Verify. The charging party had been employed by The Pantry for seven months before he was improperly run through E-Verify. In response to OSC’s investigation, the Pantry and the charging party reached an agreement providing that he would withdraw his charge in exchange for reinstatement and a payment of $3,500 to the Charging Party. The charging party rejected The Pantry’s offer of reinstatement. (Hilton Head, SC)
- , On July 12, 2010, OSC issued a letter of resolution dismissing an E-Verify-related charge filed by a naturalized U.S. citizen against Triumph Foods. The worker had changed his name when he naturalized but had not updated his SSA record to reflect the name change. OSC’s investigation revealed that the worker received and contested an E-Verify TNC. When the worker went to SSA to resolve it, SSA failed to follow proper procedures, which required it to place the case in continuance to permit sufficient time for its records to be corrected. As a result, E-Verify issued an erroneous FNC and the worker was fired. After SSA corrected the information, Triumph Foods delayed rehiring the worker. The worker then contacted OSC and was rehired after OSC explained the situation to the employer. The worker subsequently filed a charge with OSC seeing compensation for the work he missed. As part of the charge resolution, the charging party received $3,000 in back pay and Triumph Foods agreed to provide training to its human resources staff on proper Form I-9 and E-Verify procedures. (St. Joseph, MO)
E-Verify must provide good faith employers with a true shield against penalties before any mandate should be passed. In addition, due to the complexity of immigration law, additional time (at least 120 days) to resolve legitimate claims to identity or work authorization errors in the database must be mandated. Employers are currently in a constant whipsaw of compliance between ICE and USCIS and DOJ with inconsistent guidance from the agencies. If you want the rule of law to be given a chance to actually work for good faith employers, we need to get the E-Verify house in better order…