Review and analysis of E-Verify program and procedures
Copyright Farhad Sethna, 2008
Question: should an employer adopt the E-Verify program?
Answer: Briefly, my answer is “no”. Here is why:
1. The E-Verify program relies on a Social Security Administration database which by the SSA’s own estimate has a 4.1% error rate. Therefore, for every one hundred employees your company hires, at least 4.1 (or 5) will encounter some error through the E-Verify system which will cause them to become “unemployable” until the error is corrected.
2. The method of correcting errors can be very cumbersome and requires employees to take documents, etc to the Social Security office and in some cases to the DHS (USCIS) or USICE. This will require taking a great deal of time during the day to accomplish these governmental tasks. (The SSA estimates it will have to hire and train 700 more employees to handle the re-verification load posed by e-verify).
3. The employer must run E-Verify on each and every employee hired after the E-Verify process is in place and the employer has registered. For a large company, with several operations in many different states, different countries, numerous subsidiaries, and numerous projects going on at remote locations, this may prove to be an incredibly complex task. Employers must also e-verify Employees who seek the 17- month OPT extension under the STEM guidelines.
4. Additionally, the Memorandum of Understanding issued by the DHS and the SSA which any prospective E-Verify employer must fill out and accept in order to sign on to the E-Verify process includes the following requirements which I have critiqued as follows:
• Cannot be used to pre-screen applicants;
• Verify all new hired employees within 3 days as described above (cannot pick and choose which employees to e-verify);
• Maintain detailed records on all employees run through e-verify
(copies of documents, e-mail entries, non-verifications; extensions; final verification, etc.);
• Deal with problems caused by the restriction on number of documents that are accepted by the E-Verify system from list B of form I- 9 – the only documents permitted are restricted to documents bearing photographs”. No other documents are acceptable. Obviously, this presents a significant problem for individuals who may not have documents with photographs from list B. Keep in mind that not all US citizens have passports – in fact, very few do. Therefore, getting a document that is an identity document with a photograph may present a problem to an employee. This also represents a legal problem, discussed below;
• DHS, ICE, or SSA may come and inspect records at anytime;
• The employers has to read and become familiar with a manual on E-Verify procedures and must follow the manual to the letter. Failure to follow the manual may result in penalties to the employer;
• In the event that the employee is not employment-verified, the memorandum is unclear as to what the employer’s duties are. The memorandum does state that an additional ten-day extension may be granted while verification procedures are carried out. However, this then limits the employee to only ten more days within which to gather documents which he or she may not have, may have lost , or may never have been issued by a government agency. Obviously, this presents a great burden on employees, especially those who may be US born citizens and may have not maintained adequate records of their birth or citizenship.
• Burden the employer to track the employee’s employment verification process, check on incomplete processes, check for final verification or extensions, etc, and terminate the employment if necessary.
5. While the USCIS and the DHS mandate usage of the E-Verify system once an employer has registered, the memorandum does not specify how the employer is going to benefit from use of this system and it also does not specify how the DHS will protect the employer in the event of a wrongful discrimination suit brought by an individual who is legally authorized to work in the USA but is terminated because of e-verify’s mistake.. The Form I-9 does not allow an employer to pick and choose identity documents from list “B”. Thus, does e-verify actually require an employer to break the law?
6. Reliance on the SSA’s Numident database presents a problem. It generally takes well over 40 to 60 days for the SSA to issue a valid social security number. In the interim, obviously the employee comes and works for the company. For the employer to enter the employee’s social security number into the E-Verify system within three days of hiring an alien may be absolutely impossible. In that case, the employer could be penalized for not checking the employee’s eligibility within three days of hire. Finally, even if a number is entered into the system, it is quite possible that the SSA has not uploaded its database with the DHS, thereby causing non-verification to issue from the DHS for a newly issued social security number. Likewise the DHS may not have updated the SSA with information on new EAD issuances or other employment-authorized approvals for individuals. All of these factors obviously severely affect the ability of any employer to hire alien employees. My clients have experienced delays in issuance of SSN’s even when they present valid EAD cards issued by the DHS!
In conclusion, unless the system is updated at least every 24 hours and is regularly cross-
referenced both by DHS and SSA to update each others’ databases for aliens who have been granted work authorization, the system is basically useless. All it would do is create further paperwork and responsibilities for employers who hire aliens. Therefore, my advise is not to adopt the system until it is fool-proof, timely updated, and has a clear mechanism to redress any error. Also, the system should protect employers from any wrongful termination claim based on the employer’s use and reliance on the E-Verify system.
New Development: Requirement that Federal Contractors register and use E-verify:
UPDATE: June 13, 2008: Presidential executive order 12989, “as amended” requires Federal contractors enroll and use e-verify:
E.O. 12989 “instructs Federal departments and agencies that enter into contracts to require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of all persons hired during the contract term by the contractor to perform employment duties within the United States, and all persons assigned by the contractor to perform work within the United States on the Federal contract.”
Copyright 2008, Farhad Sethna, Esq.