EmployeeScreenIQ Blog

It’s been fairly smooth sailing for the E-Verify, the government program that allows employers to check the legal right to work status of an employee in the United states, since it was made mandatory for federal contractors last year.  That is until now, where it is being reported that this system is failing to catch more than half of all illegal workers.  The technology is not the problem, nor are Social Security Administration’s or Department of Homeland Security’s databases.  The issue lies in its inability to detect identity fraud.  In other words, if the employee fills out their I-9 Form and presents documents that contain valid information (such as a social security, passport or drivers license number), the system simply can’t tell that they belong to someone else.

I suppose this is a better problem to have then the system regularly spitting our tentative non-confirmations for legal workers, but still something that will have to be addressed in some fashion.

Report: E-Verify Misses Half of Illegal Workers

By SUZANNE GAMBOA, Associated Press Writer – Thu Feb 25, 3:09 am ET

WASHINGTON – The system Congress and the Obama administration want employers to use to help curb illegal immigration is failing to catch more than half the number of unauthorized workers it checks, a research company has found.

The online tool E-Verify, now used voluntarily by employers, wrongly clears illegal workers about 54 percent of the time, according to Westat, a research company that evaluated the system for theHomeland Security Department. E-Verify missed so many illegal workers mainly because it can’t detect identity fraud, Westat said.

“Clearly it means it’s not doing its No. 1 job well enough,” said Mark Rosenblum, a researcher at the Migration Policy Institute, a nonpartisan Washington think tank.

E-Verify allows employers to run a worker’s information againstHomeland Security and Social Security databases to check whether the person is permitted to work in the U.S. The Obama administration has made cracking down on employers who hire people here illegally a central part of its immigration enforcement policy, and there are expectations that some Republicans in Congress will try in coming weeks to make E-Verify mandatory.

E-Verify correctly identified legal workers 93 percent of the time, Westat said. However, previous studies have not quantified how many immigrants were fooling the E-Verify system. Much of the criticism of E-Verify has focused on whether U.S. citizens and legal immigrants with permission to work were falsely flagged as illegal workers.

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I found the article,  Official: E-Verify changes in the works on NextGov.com and felt compelled to weigh in on the future of E-Verify.

Yes, the E-Verify program is set to expire at the end of this month if is not renewed. With the new Federal Contractor Rule finally in place, there is no chance of this happening. E-Verify will absolutely be extended.

What does the future hold for E-Verify? In my opinion, the contractor rule is a primer for future legislation which requires all U.S. employers to confirm workers’ employment eligibility status through E-Verify. But I don’t believe that E-Verify is ready to handle that type of capacity now or any time in the near future. Further, both the Social Security Administration and theDepartment of Homeland Security need to clean up their databases a bit more to be ready for “primetime”.

Are biometrics likely to be used in the future? Sure, eventually we might get there, but considering the time and cost involved, we are a long, long way off.

Conclusion:
Get used to E-Verify. It’s not going away. It’s going to expand and sooner, rather than later it will affect your organization if it hasn’t already.

Also, if you haven’t yet, check out our E-Verify podcast with Stu Lawrence from Form I-9.

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I recently spoke with Stu Lawrence from our channel partner, Form I-9 Compliance to discuss the federal mandate that all federal contractors must utilize E-Verify to confirm their employee’s right to work status in the United States.  This mandate is set to take effect on September 9, 2009.

Check out our podcast with Stu (below).

For more information on I-9 forms and the Electronic Employment Eligibility Process, please visit us at http://employeescreen.com/employmenti9.asp

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The following is being reported to us via the National Association of Professional Background Screeners (NAPBS)

On August 19th the below Proposed Rule (provided in part) was published in the Federal Register announcing the rescission of regulations which would have placed onerous requirements on employers relating to the receipt of no-match letters from the Social Security Administration and the Department of Homeland Security. Essentially, under the amendments proposed by DHS, receipt of a no-match letter may have been sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized.  Employers should note however that DHS’ rescission of these regulations is because instead they will focus on immigration compliance through E-Verify, IMAGE and other verification programs.

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission

SUMMARY: The Department of Homeland Security (DHS) proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DATES: Comments must be submitted not later than September 18, 2009.

What led up to the Rescission of the Rule?
As stated in the Federal Register. Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters.

On August 29, 2007, the American Federation of Labor and Congress of Industrial Organizations, and others, filed suit seeking declaratory and injunctive relief in the United States District Court for the Northern District of California. AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB, D.E. 1 (N.D. Cal. Aug. 29, 2007). The district court granted plaintiffs’ initial motion for a temporary restraining order against implementation of the August 2007 Final Rule. AFL-CIO v. Chertoff, D.E. 21 (N.D. Cal. Aug. 31, 2007) (order granting motion for temporary restraining order and setting schedule for briefing and hearing on preliminary injunction). On October 10, 2007, the district court granted the plaintiffs’ motion for preliminary injunction. AFL- CIO v. Chertoff, 552 F.Supp.2d 999 (N.D. Cal. 2007) (order granting motion for preliminary injunction).

The court raised three issues regarding DHS’s rulemaking action implementing the No-Match final rule: Whether DHS had (1) supplied a reasoned analysis to justify what the court viewed as a change in the Department’s position–that a no-match letter may be sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized; (2) exceeded its authority (and encroached on the authority of the Department of Justice (DOJ)) by interpreting the anti- discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (1986), INA section 274B, 8 U.S.C. 1324b; and (3) violated the Regulatory Flexibility Act, 5 U.S.C 601 et seq., by not conducting a regulatory flexibility analysis. DHS subsequently published a supplemental notice of proposed rulemaking (SNPRM) and supplemental final rule to clarify certain aspects of the 2007 No-Match final rule and to respond to the three findings underlying the court’s injunction.. See e.g. 73 FR 15944 (Mar. 26, 2008), 73 FR 63843 (Oct. 28, 2008). Neither the SNPRM nor final rule, however, changed the safe-harbor procedures or applicable regulatory text. The implementation of the rule remains enjoined.

Basis for the Administration’s Policy Change?
As stated in the Federal Register notice.  On January 20, 2009, President Barack Obama was sworn into office. Shortly thereafter, on January 21, 2009, Janet Napolitano was sworn in as the Secretary of Homeland Security. Following the transition, the Secretary conducted a review of existing programs and regulations to determine areas for reform or improved efficiency. Pursuant to this review, DHS has determined that improvements in U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS’s regulatory and enforcement goals.

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The Wall Street Journal is reporting that the U.S. Department of Immigrations and Customs Enforcement (ICE) is stepping up their efforts to audit U.S. employers who hire illegal workers.  According to John Morton, the new chief of of ICE, 654 companies are currently being audited with many more notices to follow.

These efforts are in stark contrast to the lax auditing practices of the previous administration.  And the fines are significant.  So employers, beware.  Make sure you have I-9’s in place with a process to ensure you are receiving valid identification.  Many employers now have started to use E-Verify and other electronic employment eligibility systems to help with compliance in this regard.

U.S. Intensifies Audits of Employers- Wall Street Journal

LOS ANGELES — A senior U.S. immigration official said Monday that his agency will intensify a crackdown on employers of workers in the country illegally as part of the Obama administration’s new immigration strategy.

John Morton, the new chief of U.S. Immigration & Customs Enforcement, a unit of the Department of Homeland Security, said that the agency is set to increase the number of companies it will audit and systematically impose fines on violators. Violations could also lead to criminal charges, he said.

On July 1, Homeland Security Secretary Janet Napolitano announced an audit of employers to verify whether their employees were eligible to work. Mr. Morton said that 654 companies are currently being audited and that many more employers will be notified soon that they also will be under scrutiny by the government.

“You are going to see audits regularly and on a larger scale,” Mr. Morton said during a two-day visit to southern California, his first since being appointed four months ago. “You will see the resuscitation of…civil fines.”

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Federal contractors be advised. It appears that the government is finally ready to follow through on its mandate to have all federal contractors use E-Verify to confirm employment eligibility on all workers. After several delays since the rule was supposed to take effect in January, 2009, DHS sent out this release this morning.

Department of Homeland Security

Release Release Date: July 8, 2009

For Immediate Release Office of the Press Secretary Contact: 202-282-8010

Department of Homeland Security (DHS) Secretary Janet Napolitano today strengthened employment eligibility verification by announcing the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The declaration came as Secretary Napolitano announced the Department’s intention to rescind the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano. “Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our Department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.” E-Verify, which compares information from the Employment Eligibility Verification Form (I-9) against federal government databases to verify workers’ employment eligibility, is a free web-based system operated by DHS in partnership with the Social Security Administration (SSA). The system facilitates compliance with federal immigration laws and helps to deter unauthorized individuals from attempting to work and also helps employers avoid employing unauthorized aliens.

The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. After a careful review, the Administration will push ahead with full implementation of the rule, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009.

On average, one thousand employers sign up for E-Verify each week, totaling more than 134,000 employers representing more than half a million locations nationwide. Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours. The figure is based on statistics gathered from October through December 2008. Since October 1, 2008, E-Verify has processed more than six million queries. In an April 2009 American Customer Satisfaction Index Survey of over a thousand E-Verify participants, E-Verify scored 83 out of a possible 100 points—well above the latest federal government satisfaction index of 69 percent. In addition to expanding participation, DHS continues to enhance E-Verify in order to guard against errors, enforce compliance, promote proper usage, and enhance security. Recent E-Verify advancements include new processes to reduce typographical errors and new features to reduce initial mismatches. In May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens. Other initiatives underway will bring further improvements to Federal database accuracy; add new tools to prevent fraud, misuse, and discrimination; strengthen training, monitoring, and compliance; and enhance privacy protections.

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

As Governor of Arizona, Secretary Napolitano signed legislation mandating all employers in the State use E-Verify. Implementation of this legislation has received high marks from employers across Arizona and the USCIS Ombudsman (in a December 2008 report).

For more information on E-Verify, visit www.uscis.gov/everify.

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On Friday Congress passed the massive American Recovery and Reinvestment Act of 2009.  President Obama will sign this bill into law on Tuesday February 17th in Colorado. The $789 billion package is said to create and/or save more than 3 million jobs.  According to the Society for Human Resource Management (SHRM) the bill will have a considerable impact on its members.

A few areas that will affect Human Resources:

- E-Verify – All provisions for E-Verify were removed from the final version of the Bill.

- Unemployment and Health Care Coverage – A nine month extension of a program that offers an additional seven weeks of unemployment benefits.

- Health Care Technology – Almost $20 billion will be spent to improve the nations health care information technology.

- Trade Protection for Jobs – A provision was added that would extend Trade Adjustment Assistance benefits for at least 160,000 more workers who lose their jobs because of increased imports or because workers move those jobs offshore.

- Executive Compensation – A controversial provision limits compensation packages for businesses receiving TARP funds can offer their executive teams.

There are sure to be more areas of the 1,100 page bill that will impact Human Resources but these will have the most immediate.  Background screening companies were looking forward to the E-Verify provision as it allows us to enhance our automated I-9 Services.  The program is still available but voluntary for much of the country.  Stay tuned for more information in the coming weeks.

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This just in from NAPBS Lobbyist Montserrat Miller, of Counsel – Greenberg Traurig LLP.

According to Montserrat: Earlier this month, the litigants in the court challenge to the FAR Council’s regulations, mandating a modified version of the E-Verify/Basic Pilot program, reached an accord in which the government agreed to suspend applicability of the rule until February 20, 2009. Today, the litigants agreed to extend the applicability date to May 21, 2009, and asked  the court to stay the proceedings to allow President Barrack Obama’s Administration an opportunity to review the rule.

On January 20, 2009, Rahm Emanuel, President Barrack Obama’s Chief of Staff, issued a memorandum to the heads of all executive departments and agencies governing issuance and possible suspension of regulations. The memorandum stated that agencies should “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect.”

Under the new applicability date, which is expected to appear in Friday’s Federal Register, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the rule would impose. As previously reported, the rule mandates on most federal contractors and subcontractors a modified version of the E-Verify/Basic Pilot program—requiring reverification of the workforce and creating vicarious liability for subcontractors.

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Parties to a lawsuit challenging a federal E-Verify system’s mandate agreed Friday to postpone the effective date to Feb. 20. The  government had ordered federal contractors to use E-Verify, an Internet system designed for employers to verify legal employment status of employees, by Jan. 15.

The U.S. Chamber of Commerce and four other employer and human resource groups filed suit Dec. 23 to stop the mandate.

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As many of you know, last June President Bush signed into law a mandate for Federal Contractors to use E-Verify (the government program that allows instant verification of right-to-work status).

As of November 14, 2008, the law was finalized and enforcement begins on January 15, 2009.  Teresa Cheek from The Delaware Employment Law Blog did a masterful job of explaining the law, who it affects and what needs to be done to get in compliance.  See the following excerpt from her post below.

“Starting on January 15, 2009, once you are awarded a federal contract worth more than $100,000 that has a performance term of 120 days or more, or if you have a subcontract worth more than $3,000, you will have 30 days to enroll in the federal contractor E-Verify program.  Enrolling involves signing a non-negotiable Memorandum of Understanding with the Department of Homeland Security and registering the individuals who will be using the system. I suggest that you take a look at page 5 of the E-Verify User Manual to get an idea of your options and what it will be like to use the system. The people you select to be “users” of the system will have to register and take the on-line tutorial before you can actually begin using the system.

You might want to register now and begin using the standard E-Verify system for new hires to give get a head start before the deadline. If you are already enrolled in the E-Verify program as of January 15, 2009, and you have a qualifying contract or subcontract, you will have to modify your enrollment to switch to the federal contractor version.  Within 90 days of enrollment as a federal contractor, you will have to begin using E-Verify for all new hires in the U.S. (including people who are not working directly on a federal contract), within three days after the employee begins working for pay.

There is one major difference between the federal contractor E-Verify process and the standard E-Verify process. Federal contractors will also have to run E-Verify on each current employee who was hired after November 6, 1986 and who is directly involved in work under the contract. The standard E-Verify process may be used only for new hires.”

Read the full article

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