The Basics of E-Verify, the U.S. Employer Verification System
The Basics of E-Verify, the U.S. Employer Verification System
Though comprehensive immigration reform appears quite unlikely in the 112th Congress, immigration enforcement measures, and E-Verify in particular, have become hot topics among lawmakers and other stakeholders on both sides of the aisle. Specifically, attention is focused on the question of whether the use of E-Verify — the federal employment eligibility verification system — should be made mandatory.
The E-Verify program allows employers to confirm the immigration status of new hires by checking their identity data against government databases. While not without controversy, E-Verify is widely accepted as a useful immigration enforcement tool, making companies accountable for employing only those who are authorized to work in the United States.
From its voluntary pilot testing and first use in 2004 by very small numbers of employers, E-Verify has expanded significantly. Since 2006, more than 15 U.S. states have implemented some type of E-Verify mandate, either through legislation or executive order, and the Supreme Court recently upheld through Chamber of Commerce v. Whiting the states' right to make participation in E-Verify mandatory for all employers. Additionally, an Executive Order signed by President Bush in 2008 requiring all federal contractors and subcontractors to use E-Verify went into effect in September 2009.
E-Verify has since experienced dramatic growth both in terms of uptake among employers and the number of queries processed, partly as a result of these mandates. As of January 2011, over 243,000 employers had registered to use the system, up from 9,300 in June 2006, according to U.S. Citizenship and Immigration Services (USCIS). And overall use of the program increased eight-fold between 2006 and 2010, from 1.7 million to 13.4 million queries, covering about one out of four people hired in the United States in 2010.
Still, with a total of about 7.6 million business establishments in the United States according to 2008 U.S. Census Bureau data, only about 3 percent of all employers have enrolled in the system.
USCIS has taken a number of steps since 2005 to strengthen E-Verify, but some aspects of the program remain contentious. Security experts worry that it is not perfectly reliable, business groups see it as costly, and labor and immigration advocates are concerned about the negative effects of E-Verify on some legal workers.
The House Judiciary Committee, which has authority on immigration matters, held a hearing on E-Verify in February 2011, at least six new bills related to E-Verify were introduced in the House this past spring, and the Secure America Through Verification and Enforcement (SAVE) Act (HR 2000) — which would require mandatory E-Verify participation by all U.S. employers — was reintroduced in late-May. Although a mandatory E-Verify bill may pass in the House this session, such a bill's prospects in the Senate are uncertain.
This 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 that are 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, upon 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 forms of identification.
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 seem "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 General Accounting Office (now the Government Accountability Office, or 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 strengthen 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. Then, on June 6, 2008, President Bush amended Executive Order 12989 to require federal contractors to use E-Verify, a requirement implemented in November 2008 through amendments to the Federal Acquisition Regulation governing contracts. With support from the Obama administration, the final rule became effective September 8, 2009.
Over the years, Congress has considered several proposals to require employers to use E-Verify. Both chambers passed E-Verify mandates as part of broader bills during the 109th Congress, and the 110th Senate debated a comprehensive bill in 2007. Neither chamber took up a comprehensive immigration bill in 2009-10, but in 2009 Congress considered requiring businesses receiving stimulus dollars to use E-Verify.
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.
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 1).
Employers using E-Verify submit workers' I-9 data — name, birth date, 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 immigrants: the Social Security Administration'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. According to 2010 DHS data, 98.3 percent of workers receive confirmation to work either instantly or within 24 hours.
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 1 percent of workers confirmed by the system in 2009, 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). Because employer errors and errors in the system's databases mean that some of these TNCs are incorrect (i.e., they refer to legal workers), employers are required to follow specific procedures designed to protect workers' rights during the verification process and to allow workers to correct erroneous nonconfirmations.
When workers attempt to correct TNCs, it takes an average of 7.6 to 12.5 days to resolve their cases. If a worker fails to appeal the TNC within eight working days, or if a worker is nonconfirmed after appealing, 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.
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, eliminating 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.
Since October 2007, the web-based system has also included the EV-STAR program, which notifies employers directly when workers resolve a TNC at the Social Security Administration, rather than requiring employers to check back in with the system to follow-up on these cases.
Second, DHS has improved communication links among its databases, allowing real-time updates of new immigrants' information from the Integrated Border Inspection System database since May 2008. This has cut down on erroneous nonconfirmations for recent arrivals.
USCIS also changed the methodology for screening naturalized citizens in 2008, allowing DHS to confirm the eligibility of naturalized citizens even when SSA databases have not been updated to reflect new citizens' change in status.
Third, USCIS added a photo-matching 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-matching tool is currently limited to workers presenting green cards, employment authorization documents, U.S. passports, or U.S. passport cards. With the exclusion of state-issued identification cards such as driver licenses — the primary source of identification for most U.S. workers — only 2.6 percent of E-Verify cases were subject to photo matching between October 2009 and August 2010. Adding state-level data to the photo-matching tool is a critical step for its overall effectiveness, but there are a number of technical and legal challenges that would make it difficult to do so. USCIS is exploring a pilot program for limited license data sharing with the state of Mississippi.
Fourth, in direct response to earlier criticism of the program, USCIS created a Monitoring and Compliance Branch in 2007 that is responsible for identifying usage patterns that suggest identity fraud or employer misuse of the system. In fiscal year (FY) 2010, the Monitoring and Compliance Branch notified just over 2 percent of employers about some form of noncompliance.
The most recent improvement to E-Verify came on March 21, 2011, when USCIS launched the E-Verify Self-Check program. The program provides an online tool that allows people to check their own employment eligibly and provides instructions for people to identify and correct database errors in their own records.
The self-check system was implemented to combat erroneous nonconfirmations during the hiring process and to protect workers (who can now correct their own database errors) from discrimination resulting from employer misuse of E-Verify. But the system is also controversial because it relies on private data-security firms to validate the identity of workers using the self-check tool. The program is currently only available in five states and the District of Columbia, but USCIS plans to expand Self-Check throughout the country.
System improvements have sped up the process and made the program more accurate. During FY 2010, USCIS reported that 98.3 percent of queries submitted to the system resulted in confirmations within 24 hours. The remaining 1.7 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 the program's overall accuracy remains a point of controversy for two reasons.
First, when it comes to the task of identifying unauthorized workers, E-Verify fails about half the time. According to a December 2009 Westat analysis, about 54 percent of unauthorized workers screened by E-Verify between April and June of 2008 were incorrectly confirmed as legal workers. Thus, it was estimated that 3.4 of all E-Verify confirmations during this period were mistakes. A 2011 MPI analysis of FY 2009 USCIS data suggests similar trends in erroneous confirmations.
Erroneous confirmations are a widespread problem because E-Verify cannot detect identity fraud — the use of legitimate (work-authorized) name and ID data by someone other than their true owner. (The photo matching tool and audits by USCIS' Monitoring and Compliance Branch are designed in part to combat identity fraud, but both programs are limited in their scope and effectiveness.)
For example, Howard Industries — a participant of the E-Verify program since 2007 — was convicted in February 2011 on charges relating to the hiring and harboring of some 600 unauthorized workers, many of whom had used identity fraud to obtain employment with the company. The workers were discovered when U.S. Immigration and Customs Enforcement (ICE) raided the company's electrical transformer plant in Mississippi.
The second reason for the controversy surrounding E-Verify is that the program continues incorrectly to nonconfirm some U.S. citizens and legal immigrants. Erroneous nonconfirmations are much less common than mistaken confirmations (only affecting about 1 percent of workers being verified), but, given the small total number of nonconfirmations, this error rate still means that almost one in five nonconfirmations are mistakes.
About 13 percent of workers who received TNCs between April and June of 2008 tried to correct their records, with the overwhelming majority (98 percent) of those contesting a TNC eventually found to be work authorized.
Erroneous nonconfirmations add considerable expense and uncertainty to the hiring process. For workers, erroneous nonconfirmations are often difficult and time consuming to correct, with about half of workers who correct nonconfirmations having to take time off of work to do so.
According to their 2009 analysis, Westat also found that a substantial number of employers admitted to violating one or more rules designed to ensure workers have a chance to correct erroneous TNCs, including screening job applicants prior to making employment offers (4.5 to 14 percent), failing to provide workers with written notification of a TNC (only 28 percent of personnel files of workers receiving TNCs include signed copies of the notification form), or discouraging workers from appealing a TNC (7 to 33 percent indicated that they did not encourage workers to appeal).
These types of employer violations — including in some cases honest mistakes by employers who misunderstand system requirements — increase the likelihood that some legal workers are uninformed about TNCs and that some final nonconfirmations are incorrect.
Legal immigrants and foreign-born citizens are disproportionately likely to be affected by erroneous nonconfirmations and employer misuse of the system. Among workers correcting erroneous non-confirmations — a subset of all such errors — error rates by Westat in April-June 2008 were 0.3 percent for employees attesting to being U.S. citizens, 1.0 percent for workers attesting to being LPR's, and 5.3 percent for other workers attesting to being lawful nonimmigrants. According to data in the 2009 Westat report for the period May — June 2008, a total of 0.3 percent of workers who attest to being U.S. citizens correct erroneous TNCs compared to 2.0 percent of workers attesting to being non-citizens. Thus, the observable erroneous TNC rate for workers attesting to being noncitizens was approximately seven times that for U.S. citizens.
These rates are thought to have improved as a result of the procedural and database changes described above, though more recent data is not yet available. And foreign-born workers are still more likely to experience database errors due to misspellings, confusion over name order, and similar issues. Employers who rely on racial or ethnic cues in their response to workers' TNCs can exacerbate such problems.
Erroneous nonconfirmations are also a problem for employers because, though most TNCs are not contested, employers are not allowed to suspend a worker, delay training, or impose other penalties on the basis of a TNC until the workers has had a chance to correct possible errors. As a result, employers do not always comply with these worker protections, and employers who do comply must endure relatively long periods of uncertainty about some employees' work eligibility while spending money to train workers who eventually may need to be terminated.
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, and those working in states that require E-Verify can move to a state that does not mandate its use.
Supporters also claim 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. In general, a universal system for accurately confirming whether or not people are eligible to work in the United States is widely recognized as a lynchpin of an effective immigration system.
Second, even with the problems described above, E-Verify may also reduce some types of immigration-related employment discrimination by giving employers more confidence that employees are work-authorized. Many employers have responded to the complexity of the current system by engaging in "defensive hiring," or avoiding workers who appear as if they might be unauthorized, and/or by subjecting Latinos and other people of color to greater scrutiny during the document-review process. Thus, 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
Many businesses and immigrant advocacy groups argue that E-Verify's error rates mean that the system still is “not ready for prime time.”
In addition to the system's vulnerability to identity fraud, analysts warn that 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, some 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 of the firms enrolled in E-Verify.
According to many employers, the greatest burden is the cost of continuing to employ workers with TNCs — sometimes waiting weeks or months for resolution — given that the employer eventually may have to let the worker go and find a replacement.
Many proponents of comprehensive immigration reform argue that linking new E-Verify mandates to broader immigration reforms — legalization for most existing unauthorized workers and visa reforms that would match supply to employer demand — would encourage workers and employers to use the system and create the conditions for E-Verify to succeed.
Privacy advocates worry that broader use of E-Verify would lead to increased identity theft, which affected 11.2 million Americans in 2009 and cost the victims $54 billion according to fraud analysis firm Javelin Research.
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 and the reasons for stealing an individual's identity.
Over 1,000 unauthorized immigrants detained by ICE in two recent raids — a 2006 raid on Swift & Company, a meat-processing firm in Minnesota, and in a 2007 raid at the Agriprocessors meatpacking plant in Postville, Iowa — had used stolen identity information to pass E-Verify screening and prove their work eligibility. A number of workers 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.
Additionally, 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 human resources 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.
Burden on the Social Security Administration
Although USCIS bears the financial costs of administering E-Verify, SSA manages 90 percent of the system's queries, and SSA field offices are tasked with resolving erroneous nonconfirmations for U.S. citizens. Social Security 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, and that they impose a significant financial burden on the SSA.
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. However, as noted in a 2010 GAO report, current SSA estimates remain incomplete and do not fully assess future workload costs resulting from the projected increase in E-Verify cases. USCIS and SSA have yet to establish a written service-level agreement outlining acceptable SSA service levels.
Case Study: Arizona
Since January 1, 2008, Arizona's Legal Arizona Workers Act (LAWA) has required all employers to use E-verify for new hires, with the penalty for noncompliance including the suspension or revocation of one's business license. As the first U.S. state to enact legislation of this kind, Arizona offers some evidence — most of it anecdotal thus far — on the effects of E-Verify.
The media reported in late 2007 and early 2008 that, in anticipation of LAWA taking effect, 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 January 2011, fewer than 36,000 employers in Arizona had signed up for E-Verify, out of more than 140,000 establishments in the state. 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, a December 2008 report by Judith Gans at the University of Arizona 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.
It is difficult to draw conclusions about the effects of LAWA because the law was just one of several factors that may have depressed migration to the state. In particular, other county- and state-level migration enforcement initiatives have commenced in Arizona, including the passage of SB 1070 in 2010. The economic downturn has also reduced labor demand and contributed to a national drop in unauthorized immigration, hitting immigrant-dependent industries in Arizona particularly hard.
Additionally, the effects of LAWA are hard to ascertain because Arizona has so far only tentatively enforced the law's provisions. At the time of Gans' study only about 40 complaints had been filed under the law, none of which had resulted in superior court actions or license revocations. And a 2010 report by the Public Policy Institute of California (PPIC) found only three license revocations under LAWA.
Nonetheless, researchers have drawn three tentative conclusions about the effects of the Arizona E-Verify law. First, although Gans could not draw any conclusions about the law's effect on illegal immigration flows, the PPIC study found that about 92,000 likely unauthorized immigrants had left the state as a result of the state's E-Verify law, even when controlling for other factors that also likely depressed immigration to the state.
Second, according to media reports in the Arizona Republic and the Tucson Citizen, unauthorized immigrants also 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. The PPIC report also found evidence of a shift to underground employment: while the noncitizen Hispanic population in Arizona fell by 17 percent (or 56,000) between 2008 and 2009, Hispanic self-employment increased by about 8 percent (25,000) during that period.
Third, a survey by the American Friends Service Committee in Arizona found high levels of employer misuse of the system, both accidental and intentional. About a third of immigrant workers surveyed, including an unknown number of unauthorized immigrants, had been fired after being screened through E-Verify without being notified of a TNC or given a chance to correct potential errors. About 30 percent of workers were rescreened after the initial three-day period in which screening is permitted. Workers also reported being denied back wages (16 percent), being threatened with termination (10 percent), and having their wages cut (12 percent) as a function of employers' use of E-Verify in Arizona.
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. Although USCIS recently launched the Self-Check program allowing workers to review and correct their own records, this service is currently limited to workers in just five states and the District of Columbia. Workers remain unable to appeal final nonconfirmations, 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 currently face no penalties if they break E-Verify's rules.
As many as a quarter of employers admit to violating certain rules related to informing workers about a tentative nonconfirmation, according to Westat's 2009 study, and surveys of E-Verify employees suggest higher rates of noncompliance. Many employers may also be confused about program rules, rather than intentionally noncompliant.
These data on noncompliance, therefore, likely 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 2009, USCIS had 52 agents assigned to monitor employer compliance with E-Verify requirements, or about one for every 4,700 businesses registered with the program, and none dedicated specifically to overseeing compliance with worker protections.
Business groups, however, 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 three alternatives to E-Verify.
First, some lawmakers have proposed a role for private verification firms to supplement E-Verify's identity authentication process or as an alternative to E-Verify. Some privacy advocates also 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, though some privacy advocates also warn that private databases are more error prone and not designed to serve a broad worker population.
And 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 second 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 controversial and costly to implement, however, because it would require all U.S. workers to provide the government with fingerprints or other biometric data, and all U.S. employers would have to obtain biometric scanning technology (or make use of public or private verification firms that provide scanning services).
Nonetheless, Senator Chuck Schumer (D) has been a strong proponent of a biometric workplace verification system that would replace E-Verify. Senator Lindsey Graham (R) joined Schumer in a bipartisan effort to reform immigration law last year, emphasizing that a biometric identification card should be issued to everyone wishing to work in the U.S., but also that there should be no national biometric database.
Finally, a two-stage system proposed by some labor advocates 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 prevent some forms of identity theft and greatly reduce costs to employers by resolving TNCs earlier in the process.
However, this type of system would still be somewhat vulnerable because 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.
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, and recent growth in the program means that mandatory E-Verify likely would engender little opposition as part of a comprehensive bill. But with action on a comprehensive bill doubtful in the current session of Congress, efforts to pass stand-alone E-Verify mandates would be far more controversial.
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