E-Verify: Bad Execution, Bad Idea

When the governor of Rhode Island signed an executive order at the end of March requiring the state government and private businesses that contract with it to use a little known federal program to verify employment eligibility, he positioned his state within a small but growing number of governments using social security information to target undocumented workers.

The innocuous sounding "E-Verify" program allows employers to electronically check whether their employees are authorized to work. If the workers are not authorized, they are fired.

Participation in the program is billed as voluntary, but employers are increasingly being required to use E-Verify by state legislatures and governors intent on doing something about "the problem of illegal immigration," as Rhode Island‘s governor explained in his directive. As of mid-April, eight states required at least some employers to use this system and several more were considering similar legislation.

Not to be outdone, Congress is looking to make the program mandatory for the entire country. There are two bills with substantial support pending in the House of Representatives. One, co-sponsored by Democrat Heath Shuler and Republican Tom Tancredo, lulls the senses with its clever acronym SAVE (Secure America through Verification and Enforcement) Act. Texas Republicans Sam Johnson and Kevin Brady, along with Wisconsin Republican Paul Ryan, sponsored the other bill. These bills would require some or all employers to use the program. Failure to participate would result in penalties—typically fines, lost government contracts, or lost business licenses.

The E-Verify program traces its roots to 1986 when Congress passed the Immigration Reform and Control Act (IRCA), a sweeping law that, among other things, altered workplaces throughout the country. IRCA imposed two new requirements on employers. First, they had to check to make sure that any new employees had the federal government’s permission to work. Because of this requirement, every worker—citizen or not—who has been hired since IRCA has had to fill out the now ubiquitous I-9 form and show proof of identity before being hired.

To enforce this requirement Congress imposed a second step—the much talked about employer sanctions. IRCA authorizes the federal government to fine employers who do not comply with the law, either by not following the paperwork requirement or, more commonly discussed, by hiring people who are not authorized to work. Currently, employers can be fined up to $1,100 for not completing, retaining, or presenting for inspection an I-9 for every employee. In addition, they can be fined up to $11,000 for each of their employees who do not have the federal government’s permission to work.

Sensing a problem in the paper-based I-9 process, in 1996 Congress required the Immigration and Naturalization Service (INS, now part of the Department of Homeland Security’s Citizenship and Immigration Services [CIS] division) to create three voluntary pilot programs to test electronic methods for verifying employment eligibility. After internal evaluations showed that two of the pilot programs were plagued by technical problems or employer misuse—including discrimination against non-citizens who are authorized to work—Congress narrowed its focus on E-Verify’s predecessor, the Basic Pilot Program (BPP).

The BPP was designed to provide a check for employers who met the letter but not the spirit of the I-9 form’s verification process. No longer would it be enough for an employer to make a good faith determination that the documents they were shown were authentic and accurate. Under the BPP the federal government would make the final call—and it would do so immediately.

At least that’s the program’s stated purpose. In reality BPP’s past was far from perfect and its future should be nothing short of alarming.

The problems with E-Verify start with a bewildering process that involves employers, employees, up to two federal agencies, and a series of phone calls, letters, and in-person office visits. Like the current paper process, the BPP requires employers to get I-9 forms from all new employees. Employers must then enter the new worker’s name, social security number, and date of birth into the web-based program. If the employee states she is not a citizen of the U.S. then the worker’s "A" number, a number assigned by immigration officials, must be included. All this must be done within three days of the worker’s hire date.

On the other end, the worker’s information is checked against an enormous repository of employment records kept by the Social Security Administration (SSA). If either the SSA database does not verify the worker’s employment authorization or the worker is not a citizen, then the information entered by the employer is forwarded to CIS. There the information passes through Department of Homeland Security (DHS) computer databases. If the automated search turns up nothing, the information is passed along to an immigration status verifier for a manual check.

At this point the process becomes even more confusing. If CIS can’t determine work eligibility it sends the employer a "no match" letter. Several reasons can explain CIS’s inability to verify a person’s work authorization. For example, a clerical error could have resulted in a misspelled name or incorrect birth date. Since the federal government tells the employer, not the employee, about the tentative "nonconfirmation" (the formal term used to describe no match letters), the employee must rely on the employer to pass along this critical, time-sensitive news. The worker can either quit the job or contact SSA or CIS. The worker then has eight days to resolve the government’s inability to verify her work authorization.

If the worker decides to contest the no match letter, SSA or CIS must reach a final decision within ten days. After that period, if the federal government still cannot verify the person’s work authorization it sends out a final nonconfirmation letter. (This is also issued when a worker who receives tentative nonconfirmation fails to contest it.)

A final nonconfirmation is a worker’s death sentence—she must be fired immediately or the employer faces a penalty for knowingly employing a person who is not authorized to work. Recent legislation approved by the Rhode Island House of Representatives, for example, would fine an employer $50 per day for every employee who is unable to verify work eligibility.

At least three independent investigations—by the SSA’s inspector general, the Government Accountability Office (GAO), and Westat, a private research organization hired by the government—have determined that E-Verify is riddled with errors, is exorbitantly expensive, and results in discrimination against foreign-born individuals who are, in fact, authorized to work here.

One major problem is the SSA database that serves as the first check of an employee’s work eligibility, known as the Numident database. This enormous collection contains approximately 435 million records. Because the SSA does not get rid of Social Security numbers once they are assigned, the database contains 100 million more records than the country’s current population. In a December 2006 report, the SSA’s inspector general estimated that approximately 17.8 million of these records are inaccurate.

The errors are particularly bad for people who were born outside the country, including those who have become naturalized citizens. Giving what it called "a conservative estimate," the SSA inspector general reported that 4.8 million of the database’s 46.5 million records about non-citizens contain some kind of error. That represents a minimum 10 percent error rate. At least 3.3 million of these faulty records, the report added, identify people as non-citizens when in fact they are citizens. In addition, the report found that hundreds of thousands of records of naturalized citizens contain clerical errors as simple as misspelled names or the wrong date of birth that could incorrectly result in a report that they are not authorized to work.

In addition to the government’s own internal reports private evaluators contracted by DHS told the agency in September 2007 that its database "is still not sufficiently up to date to meet the IIRIRA requirement for accurate verification, especially for naturalized citizens," referring to the Illegal Immigration Reform and Immigrant Responsibility Act, the 1996 law that created the BPP.

In its report to Congress, the GAO estimated that about 15 percent of the requests for verification sent to DHS required a manual search of the agency’s records. Manual searches can sometimes take up to two weeks to resolve. The problem, the GAO found, is that employment verification information "is sometimes lost or not entered into databases in a timely manner." Meanwhile, the employer and the potential employee are in administrative limbo waiting for the government to track down its own records.

Discrimination that foreign-born workers suffer as a result of these data errors compounds the negative impact of E-Verify on workers. "Since work-authorized foreign-born employees are more likely than U.S.-born employees to receive tentative nonconfirmation erroneously," Westat reported, "the result is increased discrimination against foreign-born employees." Buttressing this finding, the GAO reported that approximately 30 percent of employers use the verification process in ways that are prohibited—for example, to screen potential employees or restrict work assignments while employees contest nonconfirmation letters.

At other times employers fail to inform workers who have received a no match letter, as they are required to do. As a result, the worker does not have the opportunity to contest the letter and is soon issued a final nonconfirmation.

For all its errors, E-Verify doesn’t come cheap. The original version, which utilized a dial-up connection, cost almost $12 billion annually, "with employers bearing most of the costs," the GAO found. The new web-based version would likely cost less per transaction, but if it is significantly expanded—as it would be if participation were made mandatory—the price tag can be expected to skyrocket.

In addition, a mandatory program would require many more workers to staff SSA offices as millions more people contest no match letters. Behind the scenes, the SSA and DHS would need more staff to process many millions more verification requests and provide technical assistance to employers nationwide.

Taking these three government studies at their word, there is no question that E-Verify is an error-ridden program that discriminates against foreign-born people. At least one state, Illinois, has followed this strategy, enacting a law that bars use of E-Verify until the federal government can accurately resolve 99 percent of inquiries within 3 days.

But urging the government to improve its data collection and retrieval abilities shouldn’t be our ultimate goal. Rather, we should point out the obvious—immigration enforcement should not be the SSA’s job. Bridging the gap between our public pensions system and the many realistic fears that arise from increasingly restrictive immigration policies will only push more employers toward off-the-books hiring. In the end, that will result in more jobs pushed into the shadows of the economy, where workers are more readily exploited.

The great irony of E-Verify is that the Numident database on which most of this process relies tracks entirely lawful, above-board work. The employers and employees whose records are stored in this enormous file all report to the SSA. They deduct payroll taxes, pay income taxes, contribute to Social Security and Medicare, and more.

Unlike the sneaky thugs of the vitriolic rhetoric—the so-called criminals whose identity is frequently reduced by politicians and pundits to nothing more than leeching "illegals" —the people whom E-Verify is intended to purge from the workforce are unquestionably gainfully employed, hard working individuals.


César Cuauhtémoc García Hernández is an attorney living in Providence, Rhode Island. His articles have appeared in law reviews at Boston College, Loyola University New Orleans, Seattle University, and St. Thomas University.