Four Reasons to take a “Wait and See” approach to using E-Verify
Remember the old adage that "No good deed goes unpunished?" I think it applies to voluntarily using the various electronic verification systems available in E-Verify and SSNVS. Although there are electronic resources to assist employers in complying with the I-9 verification requirements, I don’t think employers should jump to use them until they are forced to which is clearly on the horizon. Federal Contractors will be forced to use the E-Verify system under administration proposals.
My reasons for taking a "wait and see" approach are as follows:
- Using the E-Verify does not provide safe harbor from worksite DHS enforcement. It only protects the employer from assertions by DHS that the employer actual knowledge knowingly hired an unauthorized alien and that only applies if the social security and e-verify documents match to the employee. If the documents don’t match, the employer has actual knowledge of a potential unauthorized employee and cannot continue to employee that individual. There is no protection from the employee’s claims that the employer engaged in immigration-related discrimination. Although ICE takes the position that an employee is not liable for employee terminations under the safe harbor, that doesn’t apply to E-Verify and doesn’t stop an employee from filing a claim.
- Data base inaccuracies and limitations can put employers at risk for immigration claims. If the data base is inaccurate, which whole justification for the No-Match letters, then employers are inviting immigration complaints by employees terminated for E-Verify problems. Statistically, the E-Verify system states that participating employers matched 92% of employment inquiries. Of the remaining 8%, one percent of the employees contested the E-Verify results. To me, that’s the number of potential claims against employers who couldn’t hire the employees. That doesn’t even include employees who provide one of the myriad of other documents used for I-9 authentication that are not in the data base.
- Sources predict the E-Verify system will be overwhelmed when estimated 200,000 government contractors are required to use it. DHS states that the system can handle 25 million inquiries annually. It currently has 19,000 registered employers increasing at a rate of 1000 per month. Employers have only three days to verify I-9 documents and, once they elect E-Verify, they must use it for all employees (not only those who may have immigration issues).
- Changes in I-9 documentation requirements will make compliance simpler and E-Verify more effective. The number of Form I-9 documents used to establish identity and employment eligibility will be reduced from the current 29 categories. Employers have little capacity to verify the authenticity of these current documents, and the sheer quantity of accepted documents is an invitation to fraud. This regulation will reduce unlawful employment by weeding out insecure documents now used often for identity fraud. Simultaneously, the government will enhance the E-Verify System to include 14.8 million images stored on the DHS database including green cards. Passport and VISA data will also be added.
Until the system proves its reliability and demonstrates responsiveness, employers could experience unacceptable delays and errors leading to litigation and staffing problems.