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The Basics of E-Verify, the U.S. Employer Verification System

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The Basics of E-Verify, the U.S. Employer Verification System

For more than two decades, the United States has sought to control unauthorized immigration through enforcement at the border and at worksites. Complicating the latter has been the absence of a reliable system for distinguishing between legal and unauthorized workers.

In 1996, a decade after Congress made it illegal to knowingly employ unauthorized immigrants, it established a pilot program to allow employers to verify the immigration status of new employees by checking their identity data against government databases.

Now known as E-Verify, this electronic eligibility verification system has become one of the focal points in the effort to reform U.S. immigration policy. Policymakers and advocates from across the political spectrum recognize electronic verification as the linchpin of successful immigration enforcement.

With Congress's failure to pass comprehensive immigration reform legislation in 2006 and 2007, the Bush administration poured new resources into worksite enforcement, which has included encouraging employers to use E-Verify. Several U.S. states have gone a step farther by requiring some or all employers to use the program.

Overall use of E-Verify more than tripled between 2006 and 2008, from 1.7 million to 6.6 million queries, covering about one out of 10 people hired in the United States in 2008.

As of April 2009, over 117,000 employers had registered to use the system, up from 9,300 in June 2006, according to U.S. Citizenship and Immigration Services (USCIS). Most of these employers are in human resources, government services, and manufacturing. Still, with about 6 million firms in the United States according to 2006 U.S. Census Bureau data, fewer than 2 percent of all employers have enrolled in the system.

E-Verify remains controversial. Security experts worry that it is not perfectly reliable, business groups see it as costly, and labor and immigration advocates are concerned about negative effects on some legal workers.

The Bush administration revised federal regulations to require most federal contractors to enroll in the program, which would expand participation by an estimated additional 165,000 employers. However, a federal court blocked the rule change in January, and the Obama administration placed it on hold until June 30.

Congress considered requiring businesses benefiting from the federal economic stimulus package to use E-Verify, but this provision was dropped from the final version of the stimulus bill; and Congress reauthorized funding for E-Verify as part of the omnibus spending bill passed in March. Meanwhile, Homeland Security Secretary Janet Napolitano has ordered a thorough review of E-Verify.

Policymakers are poised for another round of debate on E-Verify as funding for the program expires in September 2009. Most business and proimmigration groups want E-Verify to remain a voluntary program until database reliability is increased and other improvements are made. But advocates for tougher immigration enforcement see mandatory participation in E-Verify as a critical step in bringing the U.S. immigration system under control.

This Source article reviews the history of E-Verify, how it works, the results it gives, the arguments both for and against making its use mandatory, and its unintended consequences. It also examines how E-Verify has worked in Arizona, which has required its use since January 1, 2008, and alternatives to the system now being considered.

Legislative History and Overview

The case for E-Verify, or a system like it, dates back at least to the earliest days of the U.S. debate about punishing employers for hiring unauthorized workers. The logic: employers can only be accountable if they have the tools to reliably determine workers' legal status.

Thus, the Senate passed an employer-sanctions bill in 1982 that would have created a national ID card. However, House leaders failed to bring the bill to the floor in that chamber.

In 1984, both chambers passed sanctions bills that also would have created a national call-in system to confirm workers' status. The bill died in conference committee as House and Senate negotiators were unable to work out differences over the bill's amnesty provisions.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), which made it illegal to knowingly employ unauthorized immigrants. Under the law, employers are required to review one or two documents for each new employee to confirm the worker's identity and that he or she is authorized to work in the United States.

Employers and civil libertarians successfully lobbied to weaken the bill's verification provisions as part of the broader IRCA negotiations, however. And neither the national ID card nor the call-in system was included in IRCA.

As a result, compliance with IRCA is based on the I-9 form, on which workers attest that they are authorized to work in the United States and employers record information about the documents the worker presents.

This document-based system has proven to be highly unreliable, primarily because IRCA's passage sparked a large market for fraudulent green cards and other fake IDs.

While the law requires employers to check workers' documents, it also undermines their ability to do so. In an effort to prevent discrimination and facilitate the process for legal workers, IRCA established a long list of documents acceptable for proving work authorization. It also prohibited employers from questioning the authenticity of documents that "appear to be genuine" and "to relate to the employee."

As a result, even good-faith employers seeking to comply with the law are often fooled by fake documents. And bad-faith employers who may know or suspect the prospective employee is in the United States illegally take advantage of the situation. Such employers go through the motions of reviewing workers' documents to shield themselves from possible prosecution.

A second set of unintended consequences following IRCA's passage was widespread discrimination against Hispanic workers and others who appeared as if they might be undocumented. A 1990 Government Accountability Office (GAO) report found that the prevalence of fraudulent documents had caused one out of five U.S. employers to begin discriminatory employment practices, such as selectively screening identity documents or lowering wages based on a worker's national origin.

These weaknesses had become clear by the early 1990s. The bipartisan U.S. Commission on Immigration Reform (also known as the Jordan Commission), which Congress authorized to review and evaluate U.S. immigration policy in the Immigration Act of 1990, made an electronic eligibility verification system the number-one recommendation of its 1994 interim report. The commission stated that such a system would strength worksite enforcement and combat discrimination based on perceptions of immigration status.

Thus, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established the Basic Pilot program (along with two other pilot programs, since discontinued) for checking identity documents against the Immigration and Naturalization Service and Social Security Administration databases.

In 2003, Congress expressed its support for electronic verification by expanding Basic Pilot from the five states in which it was first tested — California, Florida, Illinois, New York, and Texas — to make it available on a national basis under the authority of USCIS within the newly created Department of Homeland Security (DHS).

The Bush administration made a push to expand employer enrollment in the program beginning in July 2006 and changed the name to E-Verify in 2007 in an effort to rebrand the program and raise its profile.

How It Works

Under current law, all U.S. employers must check workers' documents and fill out an I-9 form for each new employee. Three categories of employers are also required to use E-Verify: certain federal government employers, certain employers who have been previously convicted of hiring unauthorized immigrants, and (under state law) some or all employers in certain U.S. states (see Table 1).

 

Table 1. States Requiring Use of E-Verify by Category of Employer

STATE State agencies State contractors All employers
Arizona X HB 2745 (Signed 5/1/2008) amends HB2779 X HB 2745 (Signed 5/1/2008) amends HB2779 X (1/1/08) HB 2779
Colorado   X HB 1073  
Georgia X SB 529 X SB 529  
Minnesota X Executive Order # 08-01 X Executive Order # 08-01  
Missouri X HB 1549 X HB 1549  
Mississippi X SB 2988 X SB 2988 X (1/1/09) SB 2988
North Carolina X SB 1523 and MOU    
Oklahoma X HB 1804 X HB 1804  
Rhode Island X Executive Order 08-01 X Executive Order 08-01  
South Carolina X H 4400 X H 4400 X (7/1/09) H 4400
Utah X SB 81 X SB 81  

 


Employers may enroll in the E-Verify program for free through the USCIS website, and the majority of current users have enrolled on a voluntary basis (see Table 2).

 

Table 2. Number of Businesses Enrolled in E-Verify by State, February 2009

State Businesses enrolled in E-Verify^ Number of firms (2006)*
United States 107,500 6,022,127
Alabama 838 80,656
Alaska 150 16,713
Arizona 29,397 110,401
Arkansas 560 53,491
California 8,596 723,880
Colorado 4,315 129,861
Connecticut 752 77,637
Delaware 233 21,140
District of Columbia 906 17,069
Florida 4,386 430,429
Georgia 6,386 181,300
Hawaii 236 26,723
Idaho 420 39,664
Illinois 2,421 262,870
Indiana 1,053 118,159
Iowa 594 65,829
Kansas 889 61,902
Kentucky 650 72,992
Louisiana 680 81,421
Maine 165 35,687
Maryland 1,668 115,149
Massachusetts 1,618 144,873
Michigan 1,140 190,411
Minnesota 1,806 124,237
Mississippi 2,023 48,011
Missouri 3,438 124,120
Montana 135 32,251
Nebraska 526 42,649
Nevada 759 50,657
New Hampshire 273 33,228
New Jersey 1,997 208,465
New Mexico 427 37,871
New York 2,686 444,728
North Carolina 2,340 176,815
North Dakota 108 17,872
Ohio 1,527 207,768
Oklahoma 1,951 72,863
Oregon 870 92,695
Pennsylvania 1,898 240,636
Rhode Island 1,473 26,691
South Carolina 1,952 83,945
South Dakota 116 21,925
Tennessee 1,550 103,559
Texas 5,583 391,527
Utah 770 58,463
Vermont 72 19,558
Virginia 2,684 156,240
Washington 1,287 150,604
West Virginia 129 32,334
Wisconsin 914 117,917
Wyoming 153 17,749

^ A business enrolled in E-Verify does not necessarily actively use the system. A business is defined the same as a firm.
* A firm is a business organization consisting of one or more domestic establishments in the same state and industry that were specified under common ownership or control. The number of firms in the United States is smaller than the sum of firms in each state because firms operating in multiple states are counted as only one firm in national tabulations. See U.S. Census Bureau definitions, here and here.
Sources: U.S. Citizenship and Immigration Services, "E-Verify Active Employer List" (Feburary 2009); U.S. Census Bureau, 2006 County Business Patterns.


Employers using E-Verify submit workers' I-9 data — name, birthdate, Social Security number, and, for noncitizens, Alien ID-numbers (A-numbers) — to the system via a secure website. The system automatically searches for the information in the two main databases containing information about work-eligible U.S. citizens and aliens: the Social Security Adminstration's (SSA) Numident database and USCIS's Customer Processing System (CPS) database.

The SSA database is used to verify that workers' names, Social Security numbers, and birthdates match SSA records. Noncitizens' A-numbers are also checked against the CPS database to verify they are in the United States legally and that they are authorized to work under the terms of their visa.

If the data match a record in the SSA database (for U.S. citizens) or both databases (for noncitizens), employers are immediately notified that the worker is confirmed.

In the case of noncitizens checked against CPS, which is actually an aggregation of several different DHS databases, USCIS verification agents also conduct a secondary search of the component databases if records are not immediately matched. In these cases, accounting for about 8 percent of foreign-born workers confirmed by the system in 2006-2007, verification takes one to three days.

If E-Verify cannot confirm the data immediately or following this manual search, employers receive a tentative nonconfirmation (TNC) along with instructions for how the worker may appeal the nonconfirmation.

Because errors in the system's databases mean some of these TNCs are erroneous (i.e., refer to legal workers), the reliability of the system depends on workers' ability to appeal a nonconfirmation.

Employers are required to follow specific procedures designed to protect workers' rights during the verification process. For example, employers may not fire a worker (other than for cause) or suspend their pay, training, or other privileges while a TNC is being appealed (some employers violate these and other rules, as discussed below).

If a worker is nonconfirmed after appealing, or if the worker fails to appeal within eight workdays, the employer receives a final nonconfirmation. If the nonconfirmed worker is not fired, the employer is presumed to be knowingly employing an unauthorized worker. Neither the employer nor the employee may appeal a final nonconfirmation.

USCIS Improvements

Responding to problems identified by independent reviews of Basic Pilot by the Westat Corporation in 2002 and 2006-2007, as well as a number of congressional oversight hearings and GAO reports, USCIS has significantly improved Basic Pilot/E-Verify in the last several years.

First, by switching from a phone- to an Internet-based system in 2005, USCIS made Basic Pilot/E-Verify easier for employers to use.

The web-based system includes validation features that alert employers to some data-entry errors; this has eliminated some erroneous nonconfirmations. The web-based system also replaced paper-based instructional materials with an online training manual that requires employers to pass a test on E-Verify procedures before finalizing their enrollment in the program.

And under the EV-STAR program, implemented in October 2007, employers are notified directly when workers resolve a TNC at the Social Security Administration, rather than having to check back in with the system.

Second, DHS has improved communication links among its databases, allowing real-time updating of new immigrants' information from its Integrated Border Inspection System database since May 2008. This has cut down on erroneous nonconfirmations for recent arrivals.

Third, USCIS added a photo-screening tool to the program in September 2007 to limit identity fraud. Under this system, employers receive an electronic copy of the worker's ID photo along with confirmation of the worker's eligibility. By comparing the photo to the ID the worker presents, the employer can confirm that the document has not been altered.

The photo-screening tool is currently limited to workers presenting recently issued green cards or employment authorization documents, a total of about 15 million workers. USCIS plans to expand the program to cover passport and passport card photos as well.

Finally, USCIS also changed the methodology for screening naturalized citizens in 2008, allowing for DHS confirmation even when SSA databases have not been updated to reflect new citizens' change in status.

E-Verify Results

System improvements have sped up the process and made it more accurate. During the third quarter of 2008, USCIS reported that 96.1 percent of queries submitted to the system resulted in confirmations within 24 hours. The remaining 3.9 percent received tentative nonconfirmations, down from 21 percent according to Westat's 2002 evaluation of Basic Pilot and from 8 percent according to Westat's 2006-2007 evaluation.

Yet it is difficult to estimate the program's overall accuracy for two reasons. First, an unknown number of U.S. citizens and legal aliens incorrectly receive final nonconfirmations after they fail to appeal a TNC, either because the process is too burdensome or because their employers fail to notify them of the result.

Second, the system incorrectly confirms an unknown number of unauthorized workers who use borrowed or stolen identity data.

As a result, even with the program's recent improvements, its accuracy rate remains an important point of contention between supporters and opponents of E-Verify. Unauthorized workers represent about 5 percent of the U.S. workforce according to Pew Hispanic Center's recent analysis of 2008 U.S. Census Bureau data. USCIS publicity about E-Verify assumes that the 3.5 percent of workers the program ultimately nonconfirms are all unauthorized, and that the error rate is near zero.

Yet, only about 15 percent of workers who receive TNCs appeal the nonconfirmation according to the most recent public data, in the 2007 Westat report.

Westat also found that a substantial number of employers admitted to violating one or more rules designed to ensure workers are able to appeal erroneous TNCs, including screening job applicants prior to making employment offers (16 percent), failing to provide workers with written notification of a TNC (9 percent), or discouraging workers from appealing a TNC (5 percent).

These types of employer violations — including in some cases honest mistakes by employers who misunderstand system requirements — increase the likelihood that workers are uninformed about tentative nonconfirmations and that some final nonconfirmations are incorrect.

Given the uncertainties, the actual rate at which the system ultimately nonconfirms citizens and legal immigrants — the rate of false nonconfirmations — remains unknown, and estimates vary widely.

The 2007 Westat study developed a statistical model that reports an erroneous final nonconfirmation rate of 0.81 percent; a 2006 SSA study estimated the error rate in the SSA database (for the purpose of eligibility verification) at 4.1 percent; and the Intel Corporation reported in August 2008 that its workers were wrongly nonconfirmed at a 12 percent rate (including TNCs).

In the latest numbers USCIS has made available, only 3.9 percent of workers received TNCs, including 0.37 percent that the system eventually confirmed; USCIS does not provide an estimate of the error rate among the remaining 3.5 percent who are nonconfirmed.

An additional source of uncertainty about the rate of erroneous nonconfirmations regards the number of erroneous confirmations.

The false nonconfirmation and TNC rates from USCIS and Westat are calculated by dividing the number of nonconfirmations by the number of cases the system confirms. If identity fraud inflates the number of confirmations in the denominator — as is likely the case, though to an unknown degree — then the observed rate of erroneous nonconfirmations is lower than the true rate.

In addition to questions about E-Verify's overall accuracy, immigration and labor advocates worry that the program effectively discriminates against foreign-born workers. Database error rates measured by Westat in 2006-2007 were 30 times higher for foreign-born workers than for natives, and almost 100 times higher for naturalized citizens.

These numbers have improved as a result of the procedural and database changes described above although more recent data is not yet available. That said, foreign-born workers are still more likely to experience database errors due to misspellings, confusion over name order, etc. Employers who rely on racial or ethnic cues and respond in different ways to workers' TNCs can exacerbate such problems.

The Case for Mandatory E-Verify

Those who support making E-Verify mandatory for all U.S. employers — namely grassroots and congressional advocates for tougher immigration restrictions — argue that a voluntary system does not work. Unauthorized workers can simply move to a nonparticipating employer (a point opponents emphasize in their analysis of error rates). And those working in states that require E-Verify can move to a state that does not mandate its use.

Supporters also say E-Verify improves on the basic I-9 system in two key ways. First, it successfully nonconfirms workers who present traditional fake IDs because the information in such IDs does not match records in the database.

Second, even with the problems described above, E-Verify may also reduce some types of immigration-related employment discrimination. Many employers have responded to IRCA's complexity by engaging in "defensive hiring," or avoiding workers who appear as if they might be unauthorized, and/or subjecting Latinos and other people of color to greater scrutiny during the document-review process.

As a result, about one in five employers using Basic Pilot in 2006-2007 told analysts they were more likely to hire foreign-born workers as a result of the program.

The Case against Mandatory E-Verify

Business and immigrant advocacy groups do not favor making E-Verify mandatory because they say electronic verification by itself does not prevent unauthorized employment. Analysts also worry that mandatory E-Verify without broader immigration reforms would fail to substantially reduce unauthorized migration and might produce worse outcomes than are observed in the current system.

Those against mandatory use of E-Verify at the present time argue the system is limited in two key respects. First, E-Verify cannot detect identity fraud or the use of legitimate (work-authorized) name and ID data by someone other than its true owner.

For example, the 2006 raid on Swift & Company, a meat-processing firm in Minnesota, resulted in Immigration and Customs Enforcement detaining 1,282 workers even though the company had meticulously participated in the Basic Pilot/E-Verify programs since 1997. Hundreds of Swift employees were later found to have used identity fraud to obtain employment.

Second, E-Verify cannot prevent underground employment. Opponents say that electronic verification would create incentives for bad-faith employers to move some or all of their production off-the-books. The Congressional Budget Office estimated in 2007 that making electronic verification mandatory without legalizing the existing unauthorized population would lead to $17 billion in lost payroll taxes over a 10-year period.

In addition, employers see E-Verify as too costly. While the program does not charge employers fees to participate, businesses are required to establish secure procedures for using E-Verify.

Meeting security requirements may require businesses to upgrade their hardware or software and make other infrastructure investments. Program administrators and other business users are also required to complete the E-Verify training module and periodic refresher training courses. In addition, businesses often have to absorb legal fees associated with using the program.

Costs are proportionally higher for small businesses, which currently represent fewer than half the firms enrolled in E-Verify.

According to many employers, the greatest burden is the cost of continuing to employ workers with tentative nonconfirmations — sometimes waiting weeks or months for resolution — given that the employer eventually may have to let the worker go and find a replacement.

Unintended Consequences

As with many government systems, E-Verify has unintended consequences. The main ones are the effects of false nonconfirmations, increased threat of identity theft, and the burden on the Social Security Administration.

False nonconfirmations, the most serious problem, affect both legally resident workers and employers. Where tentative nonconfirmations are successfully appealed, some workers report having to make multiple trips to SSA field offices or numerous calls to DHS to correct the error.

The persistence of database errors means that protecting workers against false final nonconfirmations requires employers to endure relatively long periods of uncertainty about employees' status to ensure workers an adequate opportunity to appeal a TNC. While most TNC appeals are resolved in a few days according to USCIS, some employers have reported longer delays.

As noted earlier, foreign-born workers, particularly naturalized citizens, have the highest database error rates. Since Westat, GAO, and other independent analysts have found that employers subject native and immigrant workers to different degrees of scrutiny, human error and bias can reinforce the problem.

A second unintended consequence of E-Verify is identity theft, which affected 8.4 million Americans in 2007 at a cost to these victims of $50 billion according to the U.S. Trade Commission.

By linking employment more closely to valid Social Security numbers (SSNs) and associated data (e.g., name and state of birth), E-Verify increases the value of this information, the key to stealing an individual's identity.

As noted above, unauthorized immigrants captured in the Swift raid, as well as in the 2007 raid at the Postville, Iowa, Agriprocessors meatpacking plant, had used stolen identity information to prove their work eligibility. Immigrants faced charges of aggravated identity theft in the Agriprocessors case, though at least some of the immigrants in these and similar cases appear to have been unaware that the SSNs had been stolen.

Privacy experts warn that the system also creates new opportunities for identity theft by giving program administrators better access to workers' identity data. In contrast to the current paper-based system, E-Verify gives employers (along with HR contractors and E-Verify administrators) access to data in an electronic format, with lower barriers to copying and transmission. The data are also more valuable than I-9 forms because the system confirms or denies the data's match to eligibility databases.

Third, although USCIS bears the financial costs of administering E-Verify, SSA manages 90 percent of the system's queries, and SSA field offices must resolve erroneous nonconfirmations for U.S. citizens.

SSA administrators have testified before Congress that these tasks threaten the agency's ability to complete its core mission of service to disabled and retired Americans. These administrators have estimated that a mandatory E-Verify program would cost the agency about $281 million for fiscal year (FY) 2009 through FY 2013.

SSA officials and advocates for the agency warn that expanding E-Verify would threaten the agency's ability to process the impending wave of baby boomer retirees, which is expected to add a million new cases to the agency's workload each year for the next decade.

Case Study: Arizona

Since January 1, 2008, Arizona has required all employers to use E-verify for new hires or have their business licenses suspended or revoked. As the first U.S. state to do so, Arizona offers some evidence, most of it anecdotal thus far, on the effects of E-Verify.

In anticipation of the law, the media reported in late 2007 and early 2008 that a number of firms had decided to move operations out of Arizona or to suspend their expansion plans. Local media reports also indicate that some employers dismissed Latino workers before the law went into effect.

As of February 2009, fewer than 30,000 employers in the state had signed up for E-Verify, out of more than 110,000 businesses in the state. A December 2008 report by Judith Gans at the University of Arizona found that only about 40 complaints were filed under the Arizona worksite enforcement law in 2008, none of which had resulted in superior court actions of license revocations.

One reason for these relatively low numbers is that the Arizona law only requires that new employees be verified through E-Verify, and the economic downturn in the state has limited the number of new hires.

While most Arizona employers do not see the law as burdensome, Gans reports that 22 percent of the state's small businesses surveyed in the third quarter of 2008 believed the program had negative or very negative effects on them.

Small businesses in the state reportedly worry about labor shortages when the economy recovers, and that Arizona employers will be at a disadvantage relative to employers in neighboring states. Employers have also complained to USCIS about the burden of unresolved TNCs.

Gans could not draw any conclusions yet about the law's effect on illegal immigration flows. Although Census Bureau data suggest that illegal immigration is down in Arizona, other parts of the country have experienced a similar trend. In addition, the economic downturn has hit immigrant-dependent industries in Arizona and other states particularly hard.

According to media reports in the Arizona Republic and the Tucson Citizen, unauthorized immigrants have responded to the law by moving from the formal to the informal economy, and some workers and employers have used identity fraud to avoid nonconfirmations.

Research published in the Arizona Republic in November 2008 shows that income-tax revenues have fallen far more sharply than sales taxes, providing additional evidence of off-the-books employment.

The Arizona media has also reported on cases in which U.S. citizens and other legal workers have been denied employment because of false nonconfirmations.

A survey by the American Friends Service Committee in Arizona found high levels of employer misuse of the system — both accidental and intentional.

Proposals for Additional E-Verify Improvements

Supporters and critics of making E-Verify mandatory agree the system can use more improvements.

Labor and privacy advocates have proposed establishing special offices within DHS and SSA to continuously audit and "clean" the E-Verify databases. These offices would also put in place mechanisms for workers to review and correct their records before those records go through the system. Database accuracy could also be improved by requiring these offices to work with independent reviewers and provide regular reports to Congress.

A second set of proposals from labor and immigrant-rights groups concerns strengthening due-process protections for workers subject to erroneous nonconfirmations. In addition to being unable to review their own records, workers currently cannot appeal a final nonconfirmation and have no right to sue employers or the government for lost wages if they are terminated as a result of user or system errors.

Labor and immigrant advocates would also like stronger oversight of employer compliance with the system's worker protections as employers face no penalties if they break E-Verify's rules.

At least 22 percent of employers surveyed by Westat in 2006-2007 admitted to violating one or more rules related to informing workers about a tentative nonconfirmation. Many employers were reportedly confused about program rules, rather than intentionally noncompliant.

These data on noncompliance likely therefore exclude employers who knowingly violate program rules to use E-Verify as a tool to disrupt labor organizing or demand wage concessions, as reported by labor unions and immigrant advocacy organizations.

As of November 2008, USCIS had 82 employees assigned to monitor employer compliance with E-Verify requirements — about one for every 1,250 employers registered in the program — and none dedicated specifically to overseeing compliance with worker protections.

However, business groups oppose tougher labor protections, which impose new costs on employers, as these would mean longer delays in the verification process, greater liability for noncompliant employers, or both.

Business groups favor a verification system that provides more certainty, either by granting employers "safe harbor" from immigration prosecution if they participate in E-Verify, or by allowing private firms to use biometric data as part of the verification process.

Alternatives to E-Verify

Many of the problems with E-Verify are ultimately a function of the system's architecture, including its reliance on existing SSA and DHS databases, which were not designed for employment verification. Also, the system makes employers the sole point of contact between workers and the system, making it vulnerable to employer misuse.

Thus, in addition to proposed improvements, labor and immigrant rights groups and members of Congress have come up with at least four alternatives to E-Verify.

The first, which has been proposed as part of the House's New Employee Verification Act (NEVA) of 2009, would be to expand the National Database of New Hires (NDNH) to include workers' immigration status. Congress created NDNH in 1996 to help states track absentee parents and enforce outstanding child support orders; 90 percent of U.S. employers now submit data on new hires to the system.

NEVA's sponsors see NDNH as an attractive alternative to the current E-Verify databases because of the high rate of existing employer compliance with its data-collection requirements. But using NDNH for employment verification is problematic since the database does not contain any information about employment eligibility, and so would require substantial retrofitting from SSA.

NEVA would also authorize an optional alternative system in which private verification firms would contract with employers to authenticate workers' identity; these firms would have access to DHS and SSA databases to confirm workers' eligibility. Some civil libertarians support going further and shifting all verification tasks from the government to private firms.

Many privacy advocates see shifting confirmation to private firms as an attractive way to limit the government's role in collecting and maintaining identity data, and many opponents of "big government" expect the private sector would generally do a better job of managing E-Verify.

But even if private firms developed new methods for confirming workers' identity, they would rely on existing SSA and DHS databases to confirm workers' eligibility. Ultimately, they would confront the same challenges in balancing worker and employer rights when investigating TNCs.

A third alternative that some security experts and some labor unions favor is to link E-Verify to biometric data. Human resource professionals also support a biometrically based system that would replace E-Verify.

Biometrics would be a "gold standard" in employment verification because they would allow workers to present a fingerprint or retinal scan to an employer rather than ID documents, and thus eliminate the problems of identity fraud and of discrimination associated with employer judgment about workers' identity.

A full biometric system would be costly to implement, however, because it would require all legal workers to submit biometric data to a new database (or to add a biometric field to existing E-Verify databases), and employers would have to obtain biometric scanning technology (or make use of public or private verification firms that provide scanning services).

Finally, a two-stage system, which some labor advocates have proposed, would require workers to self-verify and receive their own verification code, which they would then present to employers in lieu of (or in addition to) ID documents; or would allow workers to "lock" their identity data when not using it themselves.

A two-stage system would mitigate the problem of erroneous nonconfirmations as workers would manage their own verification process. It would also greatly reduce costs to employers by resolving TNCs earlier in the process and prevent some forms of identity theft.

However, this type of system would still be vulnerable as it would allow people to "share" an identity (unless it were linked to a biometric system or an expanded version of the current photo-screening tool).

It would also require all legal workers eventually to reregister with E-Verify databases or to enroll in a new database in order to obtain PIN numbers used for the first round of verification or to "unlock" their data.

Looking Ahead

The United States has started down the employment-verification path and is unlikely to reverse course.

The future of E-Verify rests with Congress and the Obama administration. The questions they will consider in the coming months include

  • whether to link an expansion of E-Verify to legalization and/or additional employment-based visas or to mandate new participation independent of other migration reforms;
  • whether to make new mandates contingent on the system's performance or to impose a firm deadline;
  • how to protect workers and employers from false nonconfirmations, identity theft, and other system errors;
  • whether to maintain the basic architecture of E-Verify or consider more fundamental changes.

How these questions are answered depends in part on the broader contours of the debate about comprehensive immigration reform: any comprehensive bill would almost certainly include new eligibility verification mandates.

Thus, if Congress and the Obama administration move relatively quickly to take up a comprehensive reform bill, questions about electronic eligibility verification likely would be subsumed within this broader discussion.

Yet E-Verify also has a timeline of its own, as regulations requiring federal contractors to use the program will go into effect June 30, and funding for the program expires with the end of the 2009 fiscal year on September 30. Therefore, Congress likely will consider competing proposals to extend or replace E-Verify even if other immigration legislation is delayed.

Under NEVA, for example, all employers would be required within three years to participate in a modified version of E-Verify making use of the National Database of New Hires, or in a new pilot program relying on private sector verifiers, biometrics, and a two-stage system allowing workers to "lock" their identity data between uses.

Other proposals will likely seek to improve E-Verify's worker and employer protections while maintaining it as a voluntary program, or to link new E-Verify mandates to additional audits, evidence of improved performance, or legalization and additional immigration reforms.

Sources

Institute for Survey Research, Temple University, and Westat. 2002. INS Basic Pilot Evaluation Summary Report. Washington, DC: Institute for Survey Research.

_____. 2007. Findings of the Web-Based Basic Pilot Evaluation. Washington, DC: Institute for Survey Research.

Isaacs, Caroline. 2009. Sanctioning Arizona: The Hidden Impacts of Arizona's Employer Sanctions Law. Tucson: American Friends Service Committee. Available online.

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