E-Verify and Its Implications for Employers and Foreign Employees

E-Verify is an Internet-based employment authorization verification system operated by the United States Citizen and Immigration Services (USCIS) and the Social Security Administration.  The system allows employers to confirm the eligibility of newly hired workers by comparing information from the worker’s Form I-9 with information in the Department of Homeland Security and SSA databases.

In an effort to reduce the incentive for employment-related illegal immigration, on September 21, 2011, E-verify was approved as a nationwide mandate under the Legal Workforce Act. Though Congress has taken steps to develop a reliable and accurate system for employers to verify the work eligibility of their workers, numerous federal agencies have taken the initiative to improve E-verify and prepare it for mandatory implementation.

At the forefront of the reform, USCIS and the Social Security Administration launched a nationwide “Photo Screening” and “Self Check” service.  Photo Screening is a supplemental verification tool for employers to compare a worker’s photos in certain documents to those stored in government databases. Photo Screening is only activated when a worker presents a permanent resident card or employment authorization card for I-9 purposes. For that reason, the tool is available only in about 4 percent of cases and has improved E-Verify’s ability to detect fraudulent documents by only about 0.2 percent.

Alternatively, Self Check is a free, voluntary and Internet-based feature that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. If Self Check works as expected, it will greatly benefit workers by providing meaningful access and transparency to the E-Verify process. It will also help prevent tentative non-confirmations — or TNCs — that could otherwise cause workers to lose their jobs, even if only temporarily. It may even help reduce employers’ administrative burdens resulting from TNCs.  However, Self Check does not substitute for employers’ I-9 compliance obligations. Employers may not require employees to use Self Check, and employees who receive “possible mismatches” through Self Check are not obligated to take corrective action. Though helpful, Self Check and Photo Screening are not a cure all, and do not fully prepare E-Verify for nationwide mandatory implementation.

Implications

The Government Accountability Office (GAO) recommends further development for E-Verify after a 2011 GAO report confirmed that E-Verify remains vulnerable to identity theft and employer noncompliance.  Further the GAO recognizes, E-Verify enhancements such as Self Check do not address the complicity of dishonest employers in identity-fraud schemes or detect employers’ failure to screen some or all of the workers they hire.  In addition to inaccuracies, Self Check creates disproportionate disadvantages to low income and minority users who do not have internet access. Furthermore, because of the “identity assurance quiz” which uses background credit information, if a user lacks a U.S. credit history, he or she will not be able to proceed to the employment verification phase of Self Check.

Until all of these issues are addressed and E-Verify’s reliability and accuracy are improved, mandatory nationwide implementation would risk harming numerous employers and authorized workers, and may do little to prevent unauthorized workers from entering the U.S. labor market.

 
 
Immigration Law is a complex area of the law and, thus, the above post should not be construed as legal advice.  If you have any questions or would like more information, please contact Dhar Law LLP at (617)880-6155 or wassem@dharlawllp.com
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