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Effective worksite enforcement is central to efforts to secure America’s borders. While U.S. employers are committed to hiring only work-authorized individuals, today they are confronted with a patchwork of federal and state employment verification requirements that are confusing and which can be defeated by workers presenting stolen identities. American employers need one reliable, accurate and easily accessible federal employment verification system upon which they can fully rely.
To effectively verify work authorization, employers need modern tools that eliminate redundancies and build upon E-Verify’s success. While the U.S. Citizenship and Immigration Services (USCIS) should be commended for the improvements it has made to E-Verify, the program requires additional changes to make it more fail-safe and user-friendly. HR professionals overwhelmingly support using a mandatory E-Verify program if specific elements are included, such as more certainty to authenticate the identity of a new hire (see Figure 1). Real reform must ensure that any legislation in the 114th Congress that mandates an employment verification system:
Preempts the growing patchwork of state laws with one reliable, accurate and modern federal employment verification system.
Creates an integrated electronic verification system that eliminates the obsolete paper Form I-9. Employers currently enrolled in E-Verify must still complete Form I-9.
Uses state-of-the-art multidimensional, dynamic technology to accurately authenticate a new hire’s identity and safeguard against identity theft. Today, E-Verify does not protect employers from identity theft. While a photo tool is available for some employers, it does not authenticate identity.
Provides safe harbor for employers who in good faith use the system. Any employment verification system must protect employers from liability when they rely upon government approvals of erroneous authorizations. Employers must also only be responsible for their hiring decisions, not those of their subcontractors.
Applies employment verification only to new hires. Requiring employment verification of an employer’s existing verified workforce is redundant, expensive and unnecessary.
Protects employees. E-Verify sometimes fails to recognize that a U.S. citizen or permanent resident is work-authorized. The government must have a secure and efficient appeals process to correct such errors.
The Current E-Verify System Is Susceptible to Identify Theft
E-Verify is the current federal electronic employment verification system that has been reauthorized through September 30, 2015 (PL-112-176). It is an Internet-based system operated by the Department of Homeland Security (DHS) and USCIS, in partnership with the Social Security Administration (SSA).[i] Today, around 8 percent of the 6.5 million employers nationwide are enrolled in E-Verify.[ii] Requiring all employers to enroll in the system would be a major expansion, making reliability, accuracy and the need to phase in the system all the more critical.
E-Verify operates alongside the paper-based Form I-9, which must be completed for all new hires. In E-Verify, employers enter certain biographical information (name, Social Security number, date of birth, etc.) into an online interface, which checks databases at DHS and SSA to verify if a worker is authorized for employment. While E-Verify can be effective in matching a name and a Social Security number to verify work authorization, the program cannot ensure that the person presenting the documents is in fact the person who owns that identity. Unfortunately, identity theft is a growing problem in the United States, with 1.6 million taxpayers affected in the first six months of 2013, compared with 271,000 for all of 2010.[iii]
USCIS has taken some steps to try to address this problem. For instance, myE-Verify is a system through which individuals can lock their Social Security numbers within E-Verify. However, because it uses only a low level, static form of knowledge- based authentication to verify the user’s identity, it can be defeated. To make this system more secure, employers must be provided with stronger tools to accurately authenticate a new hire’s identity and combat against identity theft.
Employers will be better protected through use of state-of-the-art, multidimensional, dynamic technology that determines to a high degree of certainty whether an individual presenting biographic information is the individual who owns that identity. Multidimensional technology draws upon multiple data sources, not just a single data source like the current myE-Verify system uses. The technology must be dynamic, asking a series of questions that draw from real-time data, rather than data provided at a single point in time. Multidimensional, dynamic technology would ensure that the strongest steps possible have been taken so that identity thieves are not able to take advantage of U.S. citizens, permanent residents and other foreign nationals authorized to work in the United States.
“Identity fraud, including the inability of employers to be certain about employees’ employment eligibility, poses substantial problems … The ultimate solution is a system that offers employers who wish to follow the law the assurance of certainty. … Incorporation of … accurate technology is an important component to achieving the desired level of certainty …”
- Austin T. Fragomen Jr., Chair, CFGI, Congressional Testimony, April 2011
Growing Patchwork of State and Local Laws Make Federal Solution Imperative
E-Verify is voluntary except where it is mandated by federal, state or local law. Since 2009, certain federal contractors have been required to enroll in E-Verify (see Figure 2). Additionally, 22 states and certain cities and counties have enacted laws that require either some or all employers to use E-Verify or a specified alternative (see Figure 3). In some cases, the state or local requirements conflict with federal law or with each other. For example, Texas now requires certain employers to use E-Verify for current employees, which is prohibited by federal law. California prohibits employers from retaliating against employees who come forward with new documents even where this violates the employer’s honesty policy. Such conflicting requirements are particularly problematic for employers with operations in multiple jurisdictions.
State and local actions were emboldened by a 2011 U.S. Supreme Court ruling in Chamber of Commerce v. Whiting, where the Court upheld the Legal Arizona Workers Act, requiring employers within the state to use E-Verify to confirm the employment eligibility of all new hires and allowing the state to suspend or revoke a business license when an employer knowingly employs unauthorized workers.
Given the sheer volume of varying state and local employment verification laws, it is imperative that any legislation put forward in the 114th Congress preempt these laws with one reliable federal employment verification system. Both of the leading pieces of legislation in the 113th Congress, S. 744 and H.R. 1772, contained provisions to preempt state laws.
Administrative and Congressional Support
Under the Obama administration, worksite enforcement has significantly increased with more audits and sanctions for employers. The number of I-9 audits increased from just three in 2004 to 3,004 in 2012.[iv] While employment verification processes (Form I-9 and E-Verify) were not directly affected by the president’s executive action, there is uncertainty surrounding the question of how employers should document the work authorization of persons who step forward with new documents or new identities as a result of the proposed expansion of Deferred Action for Childhood Arrivals (DACA) or Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This is particularly problematic if the employer becomes aware of the situation before the employee has his or her legal status in hand. Additionally, there is a lack of clarity regarding what actions are permissible in enforcing employers’ internal policies on misrepresentation in the hiring process. Employers are seeking guidance from the administration on these tough issues.
In the 113th Congress, the Legal Workforce Act (H.R. 1772) included pilots to test state-of-the-art technology to better guard against identity theft. Senator Rob Portman (R-Ohio) also offered an amendment to Senate bill S. 744 to address identity theft with a state-of-the-art technology solution. Both of these bills contained provisions to preempt state laws (see Legislative Guideposts – Moving Forward on Immigration on page 64 for more detail).
Any legislation introduced in the 114th Congress must address the need for a reliable, easy-to-use federal system that employs state-of-the-art technology to enable employers to hire with certainty and protect U.S. workers.
“Our members continue to call for a federal electronic employment verification system that creates an integrated entirely electronic state-of-the-art technology to authenticate identity and to provide employers with certainty that new employees are authorized to work.”
- Michael P. Aitken, Vice President, Government Affairs, SHRM, March 2015
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