House Panel Measures The Value Of E-Verify
by John Fay
On Thursday, the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held its second hearing on worksite and I-9 issues, with a particular focus on the pros and cons of E-Verify as well as its value as both an enforcement tool and a means to "preserve jobs for American Workers." Led by Chairman of the subcommittee, Elton Gallegly (R-CA), the House panel consisted of Zoe Lofgren (D- CA), Lamar Smith (R-TX), John Conyers (D-MI), Louie Gohmert (R – TX), Dennis Ross (R-Fla.), Pedro Pierluisi (D-Puerto Rico), and Ted Poe (R Ė TX). As with the previous panel on ICE enforcement, the representatives discussed the larger issue of unauthorized employment and expressed differing opinions on whether greater enforcement alone through mandatory E-Verify could ultimately solve the countryís employment woes. Along the way, we heard several prepared statements, testimony from two witnesses (Theresa Bertucci from USCIS and Richard Stana from GAO) and also saw a quick demonstration of two E-Verify cases. While thereís no denying that the E-Verify system has made tremendous progress over the past few years, lingering questions still remain in at least 3 areas: accuracy, burdens, and effectiveness. Since each one of these directly impact participating employers (or those considering signing up), this article will explore some of the latest facts and opinions expressed during the hearing.
E-Verify is indeed a growing program. It seems that every month, we hear about a new statistic or improvement initiative that is under way at USCIS, and this hearing did not disappoint in that regard. Ms. Bertucci, who oversees the E-Verify program at USCIS first shared the following key statistics:
Despite the numbers quoted above, Ms. Bertucci and others frequently pointed to the fact that with approximately 7.7 million employers in the U.S., the percentage using E-Verify is still quite small at roughly 11%.
Errors and inconsistencies have long plagued the E-Verify system, and so the question of accuracy was frequently addressed throughout the hearing. Testifying on behalf of the GAO, Mr. Stana first noted that USCIS had reduced the number of tentative non-confirmations (TNCs) from 8 percent for the period June 2004 through March 2007 to almost 2.6 percent in fiscal year 2009. Roughly 0.3% of those receiving TNCs were later confirmed as work authorized. According to the witnesses, this improvement was realized primarily through an expansion of available databases and better quality control procedures at USCIS. Later however, Mr. Stana noted that reducing these instances of "false negatives" (person legally authorized to work receives TNC) will be increasingly harder to do because of the nature of the system (name mismatches, typos, etc.).
Burdens of the System
Ever since the passage of IRCA in 1986, employers have ultimately been responsible for verifying that their employees are authorized to work in the U.S. through the completion and retention of the Form I-9. Will mandatory E-Verify ultimately increase this existing burden? Or is it negligible given that the system is "free" to use? Citing a recent Bloomberg report (blogged about here), Rep. Zoe Lofgren questioned whether USCIS had properly considered the effect on small businesses in light of the costs associated with training, Internet access at remote locations, etc. Ms. Bertucci responded that their primary focus has been on employer outreach, rather than analysis of the underlying employer costs.
Rep. Lofgren also questioned whether the agencies had a plan for addressing the "mistakes" in the system, which can easily lead to a wrongful termination or discharge of an authorized employee. One particular case noted was that of Jessica St. Pierre, a US citizen who was fired last year after the E-Verify system reported that she was not authorized to work. Ms. Pierre apparently visited SSA, called E-Verify, and yet no one could resolve the issue. In the end, it turns out that her employer had mistakenly entered two spaces after her name which had caused the irresolvable nonconfirmation.
Both Mr. Stana and Ms. Bertucci noted that USCIS needs to figure out a way of identifying the source of these errors so that US citizen employees like Ms. Pierre can quickly resolve the issue (in her case, she was out of work for almost 3 months). Thereís also the closely related issue of employer misuse, which occurs when an organization terminates employment prior to the issuance of a final nonconfirmation.
Throughout the hearing, two very different views emerged on whether E-Verify can actually help American workers: those that believe E-Verify is a good tool, which will only become effective with greater enforcement and those that believe E-Verify is merely a "band aid" that will not address the larger issue of our broken immigration system. On the one side, Reps. Lofgren, Conyers and Pierluisi pointed out that enforcement without reform would not address the millions of undocumented workers, who would most likely be pushed farther into the shadows as employers choose to hire them under the radar. On the other side, Reps Gallegly, Smith, Gohmert, Ross, and Poe argued that greater enforcement is necessary especially in light of the economy and the administrationís failed attempts to solve the problem during the past 25 years.
Rep. Gallegly has recently expressed his desire that E-Verify should be made mandatory for all employers in the US, so we can likely expect a bill with his name on it in the very near future. In the meantime, here is a list of additional E-Verify improvements and studies which are underway (according to Ms. Bertucci):
Originally published by LawLogix Group INC. Reprinted by permission.
John Fay is an experienced corporate immigration attorney and I-9/E-Verify blogger with a unique background in designing and advising on case management technology. While practicing immigration in New York City, John designed and managed his firmís proprietary web-based immigration management system, which featured a fully multilingual interface for international organizations. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with rapidly changing immigration rules.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.