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On Thursday,the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held its second hearing on worksite and I-9 issues, with a particular focus on the pros and cons of E-Verify as well as its value as both an enforcement tool and a means to “preserve jobs for American Workers.” Led by Chairman of the subcommittee, Elton Gallegly (R-CA), the House panel consisted of Zoe Lofgren (D- CA), Lamar Smith (R-TX), John Conyers (D-MI), Louie Gohmert (R – TX), Dennis Ross (R-Fla.), Pedro Pierluisi (D-Puerto Rico), and Ted Poe (R – TX). As with the previous panel on ICE enforcement, the representatives discussed the larger issue of unauthorized employment and expressed differing opinions on whether greater enforcement alone through mandatory E-Verify could ultimately solve the country’s employment woes. Along the way, we heard several prepared statements, testimony from two witnesses (Theresa Bertucci from USCIS andRichard Stana from GAO) and also saw a quick demonstration of two E-Verify cases. While there’s no denying that the E-Verify system has made tremendous progress over the past few years, lingering questions still remain in at least 3 areas: accuracy, burdens, and effectiveness. Since each one of these directly impact participating employers (or those considering signing up), this article will explore some of the latest facts and opinions expressed during the hearing.

E-Verify Statistics

E-Verify is indeed a growing program. It seems that every month, we hear about a new statistic or improvement initiative that is under way at USCIS, and this hearing did not disappoint in that regard. Ms. Bertucci, who oversees the E-Verify program at USCIS first shared the following key statistics:

Growth

   ◦More than 246,000 employers are enrolled (33,000 of them are federal contractors), representing more than 850,000 locations.
   ◦More than 1,300 new employers enroll each week and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007.
   ◦The volume of queries per fiscal year has increased from 3.27 million in FY 2007 to 16.4 million in FY 2010. In FY 2011 to date, employers have run more than 5.3 million queries.

Despite the numbers quoted above, Ms. Bertucci and others frequently pointed to the fact that with approximately 7.7 million employers in the U.S., the percentage using E-Verify is still quite small at roughly 11%.

Accuracy

Errors and inconsistencies have long plagued the E-Verify system, and so the question of accuracy was frequently addressed throughout the hearing. Testifying on behalf of the GAO, Mr. Stana first noted that USCIS had reduced the number of tentative non-confirmations (TNCs) from 8 percent for the period June 2004 through March 2007 to almost 2.6 percent in fiscal year 2009. Roughly 0.3% of those receiving TNCs were later confirmed as work authorized. According to the witnesses, this improvement was realized primarily through an expansion of available databases and better quality control procedures at USCIS. Later however, Mr. Stana noted that reducing these instances of “false negatives” (person legally authorized to work receives TNC) will be increasingly harder to do because of the nature of the system (name mismatches, typos, etc.).

Burdens of the System

Ever since the passage of IRCA in 1986, employers have ultimately been responsible for verifying that their employees are authorized to work in the U.S. through the completion and retention of the Form I-9. Will mandatory E-Verify ultimately increase this existing burden? Or is it negligible given that the system is “free” to use? Citing a recent Bloomberg report (blogged about here), Rep. Zoe Lofgren questioned whether USCIS had properly considered the effect on small businesses in light of the costs associated with training, Internet access at remote locations, etc. Ms. Bertucci responded that their primary focus has been on employer outreach, rather than analysis of the underlying employer costs.

Rep. Lofgren also questioned whether the agencies had a plan for addressing the “mistakes” in the system, which can easily lead to a wrongful termination or discharge of an authorized employee. One particular case noted was that of Jessica St. Pierre, a US citizen who was fired last year after the E-Verify system reported that she was not authorized to work. Ms. Pierre apparently visited SSA, called E-Verify, and yet no one could resolve the issue. In the end, it turns out that her employer had mistakenly entered two spaces after her name which had caused the irresolvable nonconfirmation.

Both Mr. Stana and Ms. Bertucci noted that USCIS needs to figure out a way of identifying the source of these errors so that US citizen employees like Ms. Pierre can quickly resolve the issue (in her case, she was out of work for almost 3 months). There’s also the closely related issue of employer misuse, which occurs when an organization terminates employment prior to the issuance of a final nonconfirmation.

Effectiveness

Throughout the hearing, two very different views emerged on whether E-Verify can actually help American workers: those that believe E-Verify is a good tool, which will only become effective with greater enforcement and those that believe E-Verify is merely a “band aid” that will not address the larger issue of our broken immigration system. On the one side, Reps. Lofgren, Conyers and Pierluisi pointed out that enforcement without reform would not address the millions of undocumented workers, who would most likely be pushed farther into the shadows as employers choose to hire them under the radar. On the other side, Reps Gallegly, Smith, Gohmert, Ross, and Poe argued that greater enforcement is necessary especially in light of the economy and the administration’s failed attempts to solve the problem during the past 25 years.

What’s Next?

Rep. Gallegly has recently expressed his desire that E-Verify should be made mandatory for all employers in the US, so we can likely expect a bill with his name on it in the very near future. In the meantime, here is a list of additional E-Verify improvements and studies which are underway (according to Ms. Bertucci):

    ◦USCIS is currently working with an independent research firm to study the impact of name and date-of-birth mismatches on TNCs. This study, “Evaluation of the Accuracy of E-Verify Findings,” will be completed in the third quarter of FY 2011. USCIS plans to use the findings from the study to develop better name-matching algorithms and provide enhanced assistance to users.
     ◦In the spring of 2011, USCIS plans to pilot the E-Verify “Self Check” process to provide workers with the opportunity to verify and correct their records. Self Check will be a free, web-based service that will allow individuals to check their work authorization status before they are hired and facilitate correction of potential errors in federal databases that provide input into the E-Verify process. If a mismatch occurs, the user will be notified of the mismatch and given directions on how to correct the issue (e.g., visit an SSA field office or contact DHS). To ensure that the correct person is accessing Self Check, users will be required to authenticate their identity by entering personal information and, subsequently, responding correctly to system-generated knowledge based questions. This identity assurance process is provided by a third party and is intended to prevent unauthorized access to an individual’s records
     ◦The E-Verify program monitors the use of multiple identities and social security numbers, and USCIS is exploring ways to identify and lock these identities in cases where fraud likely exists to prevent future use in E-Verify.
     ◦USCIS has increased its staffing dedicated to E-Verify monitoring and compliance. In FY 2011, USCIS is dedicating 80 staff in Lincoln, Nebraska to this program responsibility, in addition to the current staff of 35 in Buffalo, New York. The Lincoln staff will include analysts, customer support personnel, and individuals dedicated to public outreach.
      ◦USCIS plans a more robust marketing and outreach effort in the coming months in order to increase the use of E-Verify.
      ◦To ensure the USCIS education efforts are targeted most effectively and improve employer compliance with the E-Verify program, USCIS has began analyzing the results from the mastery test employers take when enrolling in E-Verify. This effort is designed to assess what questions may need to be revised and to determine what instructions and policies may require greater explanation. This analysis will be an ongoing effort, and USCIS will continue to monitor reports to determine improvements in future releases.
      ◦USCIS is currently in the process of re-engineering its Status Verification System, which is used to track and manage TNCs so that status verifiers can document the basis for their work authorization decisions. The re-engineering is planned to occur in FY 2013. In the meantime, USCIS will implement procedures to address this concern through the use of a comment box and will update standard operating procedures to require this documentation by the end of the second quarter of FY 2011.



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