On Jun 18 2010

U.S. Immigration Services Revamps E-Verify With Mixed Results

The Immigration Reform and Control Act, or IRCA, of 1986 required all employers to verify the identity and work authorization of individuals hired after November 6, 1986.

In order to comply, employers must review acceptable identity and employment eligibility documents for each employee and complete the I-9, Employment Eligibility Verification form.  In 1997, E-Verify (then known as the Basic Pilot Program) was introduced by the legacy Immigration and Naturalization Service, or INS, as a way to facilitate this process.  E-Verify originated as a voluntary program aimed at assisting employers in employment eligibility verification.

However, with the failure of Congress to pass immigration reform legislation, in the past few years many states have made the use of E-Verify mandatory for employers and state contractors.  Likewise, the Federal Acquisition Regulation, the main body of rules governing the federal government’s acquisition of goods and services, was amended in the fall of 2009 to make it mandatory for all federal contractors and subcontractors.

E-Verify is an internet-based employment eligibility verification system run by the United States Citizenship and Immigration Services, or USCIS, in partnership with the Social Security Administration.  To use E-Verify, an employer enters employee information from the Form I-9 into the web-based system.  E-Verify runs that information against records in the SSA and the Department of Homeland Security databases to confirm whether the employee is authorized to work in the United States.

On June 13, USCIS launched a redesigned E-Verify web interface.  According to USCIS, the new design has a clean and modern design, easy and intuitive navigation, and clear and simple language.  The agency also stated that the improvements are aimed at enhancing the program’s security, accuracy and efficiency.  The most notable changes are a new home page, case alert functionality, a new verification screen and enhanced case management features.  Some of these changes may be in response to a recent report conducted on behalf of USCIS by Westat, an employee-owned corporation providing research services to agencies of the U.S. government.  The Westat report estimates that an astonishing 54 percent of unauthorized workers are erroneously confirmed as employment-authorized by E-Verify.  While USCIS attributes this high number to identity theft, this is open to question given the emphasis in E-Verify on the photo tool (henceforth to be known as “photo matching”), which allows employers to match the photo of the documents submitted with the photograph stored in certain government records.

For those employees correctly identified as unauthorized to work in the United States, there is no penalty.  In essence, they can simply pack up their stuff and find work elsewhere.  Moreover, it teaches them that employers that do not participate in E-Verify will have no way to screen them if they show facially valid work eligibility and identity documents, providing them with greater opportunity to gain employment through unlawful means.  Likewise, an E-Verify non-confirmation does not trigger any sort of notification to Immigration and Customs Enforcement, the enforcement arm of immigration, to issue a Notice to Appear before an immigration judge for removal proceedings or any other penalty for the unauthorized alien who seeks to establish work eligibility by presenting fake documentation.

Given the problems associated with E-Verify what should be done to improve it?

While USCIS’ efforts to make the Web portal more user friendly are a step in the right direction, E-Verify cannot be successful until identity documentation is more secure.  The agency would be wise to focus their efforts and funding on improving the program’s capability to recognize identity theft.  As unauthorized workers become more creative in the methods they use to obtain false or stolen work eligibility and identity documents, the system must continue to evolve in order to track these trends and stop them.  It is well known that unauthorized workers often use the same documentation over and over again at different geographic locations in order to gain employment.  The system should consider tracking identity theft trends, flagging them and at some point allowing them to trigger immigration enforcement actions.  In addition to tracing unauthorized aliens, this would allow USCIS to track down identity theft rings and fraudulent document vendors, which perpetrate the problem.

One of the principal tools that needs to be improved is E-Verify photo matching.  At present, photo matching compares employee photos on their identify documents to those stored in Department of Homeland Security databases.  It does not have the capability to pull data from the U.S. Department of State or the departments of motor vehicle, however USCIS has indicated its plans for this expansion.  Additionally, while photo matching is certainly helpful in pulling data if someone indicated that they are a foreign national authorized to work in the United States or a lawful permanent resident, individuals who claim to be U.S. citizens are not subject to photo screening.

In the past month, USCIS has made several efforts to address the issue of identity theft and document fraud.  In mid-May, the agency issued a redesigned Permanent Resident Card that incorporates several major new security features.  State-of-the-art technology incorporated into the new card prevents counterfeiting, obstructs tampering, and facilitates quick and accurate authentication.  In particular the redesign features secure optical media that will store biometrics for rapid and reliable identification of the card holder.  According to USCIS, holographic images, laser engraved fingerprints, and high-resolution micro-images will make the card nearly impossible to reproduce.  Tighter integration of the card design with personalized elements will also make it difficult to alter the card if stolen.  USCIS also announced that it would begin to issue a revised version of the Employment Authorization Document to incorporate the addition of a machine-readable zone on the back of the card to further deter immigration fraud.

As mentioned above, information from driver’s licenses and state IDs is not accessible through E-Verify photo matching.  However, even once it is integrated into E-Verify it will only be useful if Congress and the Obama administration support legislation, such as Real ID to provide funding to the states to develop and issue secure driver’s licenses.  Much of the identity fraud which occurs in the United States originates in states where it is relatively easy to obtain a driver’s license or state ID with stolen documents.  Moreover, in order to be effective, Real ID will need to provide incentives for states to include driver licenses and identification cards in the databases for use with the E-Verify photo-matching tool.  Since many immigration documents today feature biometric enhancements, it would also make sense for these to be included with driver’s licenses or state IDs.  Part and parcel of this would also be the introduction of bioenhancements to the E-Verify system.

USCIS has also indicated that over the next few months, the agency will implement measures to verify employer users of the system, detect misuse, and enhance system data.  E-Verify’s new Monitoring and Compliance Unit will begin to examine an expanded list of behaviors that indicate improper use of the system, and will create a mechanism to flag suspect Social Security numbers when they believe that they are being used fraudulently.  In an effort to rule out bad-faith employers, USCIS will begin to check employers’ legitimacy against commercial data sources.

Despite these recent efforts by USCIS, E-Verify continues to be mired with inaccuracies.  Contrary to recent USCIS ad campaigns that tout the E-Verify program as the means by which employers can satisfy their employment eligibility obligations, the program does not eliminate the need for a comprehensive compliance program, nor does it always guarantee that the workforce is work-authorized.  Employers must ensure that they are continuing to administer the program correctly, satisfying their general I-9 compliance requirements, performing internal audits consistently and taking appropriate action where necessary to correct technical errors.  For those employers that are members of E-Verify, their compliance program should include a comprehensive plan on how to deal with TCNs and cases of identity fraud.  Moreover, employers will need to ensure that they take these steps while ensuring that they are acting in compliance with the anti-discrimination provisions of U.S. immigration law.  With many federal contractors and subcontractors now required to participate in E-Verify, the consequences of non-compliance are more important than ever.

Published in The Legal Intelligencer, June 18, 2010