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"Safe Harbor" Would Help USCIS and ICE with E-Verify Credibility Gap

by Benjamin Brueggemann

U.S. Citizenship and Immigration Services (USCIS) has adopted its final rule for the Employment Eligibility Verification process (Form I-9).  This final rule, dated April 15, 2011, adopts USCIS’s April 3, 2009 interim rule without any changes.  

Although the final rule clarifies the E-Verify process and the documentation that may be presented to establish employment eligibility, it is still a system that warrants much needed improvement.  Alarmingly, until improvements are made, employers are left in the difficult position of having to use a flawed system while still being held accountable for hiring unauthorized workers even if they were confirmed through E-Verify.  While this problem could be resolved with a more enlightened approach from USCIS and Immigration and Customs Enforcement (ICE), both of those agencies fail to acknowledge the shortcomings in the system, and instead prefer to press forward with efforts to convince the public of the integrity of E-Verify while tying more and more benefits to its mandatory use. 

My chief concern is that the system does not adequately address the issue of identity theft.  The current E-Verify system matches a name to a social security number, and where available, a photo taken from a U.S. passport, green card or EAD, but it is not able to reliably confirm that the person presenting the documents is in fact the person associated with the name.  To illustrate this point, a December 2009 report by Westat, an independent consulting group, reported that “54% of the unauthorized workers who are checked through E-Verify are confirmed as work authorized.”  This is an extremely high margin of error for a system whose very purpose is to confirm that every person employed in the United States is, in fact, authorized to work.     

Moreover, while E-Verify’s photo-matching tool allows an employer to view a picture from a green card, EAD, or passport to determine whether the person standing in front of them matches the picture in the system, it still falls entirely on the judgment of the employer to confirm the identity of the person before them.  This is troubling because a business owner is not insulated from liability for a mistake in identifying the individual or from the possibility that the person completing the verification is in cahoots with the unauthorized worker or an unscrupulous recruiter. 

 In the current political climate, ICE remains focused on stepped up enforcement, including workplace raids and investigations to presumably hold dishonest employers accountable.  At the same time, even employers who use E-Verify still remain subject to harsh ICE imposed penalties where they are fooled by employees presenting false documents.  Until we have a system that allows employers to complete the verification process without being part of the decision-making process, a safe harbor provision should be provided to insulate employers who do not engage in knowing, willful, disregard of the law.  That will require a change in attitude from USCIS and ICE, who must be willing to afford some deference to law-abiding employers by providing them with confidence that by using E-Verify, they will be afforded safe harbor as to employees who are confirmed as work authorized through governmental systems. 

A safe harbor provision for participating employers will instill confidence and safeguard honest employers from the adverse effects of an ICE investigation or raid.  Today, the consequences of an ICE enforcement action can range from significant fines for even minor paperwork violations to possible imprisonment for knowing malfeasance.  While these represent the calculable penalties, there are collateral effects that are incalculable, such as the time and cost of dealing with an investigation or mounting a legal defense, not to mention the damage to a business’ reputation, which can lead to lost profits and even business closures.  Safe harbor would be a sign that USCIS and ICE have confidence in their own system, and until the agencies involved in our immigration system are willing to offer honest employers such assurances, E-Verify should not be made mandatory for all U.S. employers.

About The Author

Benjamin Brueggemann is an Associate at Goel & Anderson who works closely with clients on complex legal matters involving all of the major U.S. immigrant and nonimmigrant visa classifications, including PERM, H-1B, L-1A, L-1B, E-1, E-2, and B-1 issues. He is an experienced attorney who has worked exclusively on U.S. immigration issues since 2006 and is a skilled and effective advocate for the firm’s clients in a wide variety of cases ranging from individual and family based immigration to corporate immigration matters that involve the movement of highly skilled personnel across the globe; particularly in the information technology field. Benjamin has represented clients before United States Citizenship and Immigration Services, as well as that agency’s Executive Office for Immigration Review, Board of Immigration Appeals, and Administrative Appeals Office. He also regularly handles matters before the U.S. Department of Labor and the U.S. Department of State. Having grown up in Germany, in a multi-cultural household, Benjamin fluently speaks German, Farsi, French and English. His cultural background, extensive travel, and immigration experience provide him with a comprehensive perspective in our increasingly global world. He can be reached via email at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.