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U.S. employers are committed to hiring only work-authorized individuals, but they need an employment verification system upon which they can fully rely. This will require a truly integrated entirely electronic, verification system that fully addresses fraud and identity theft. Effective worksite enforcement continues to be the centerpiece of any broad immigration reform and efforts to secure America's borders and interior. What U.S. employers need is one reliable and secure federal electronic employment verification system.
"One national, uniform system is superior to a state-based, patchwork approach for employment verification."
-Nicole Hedrick, Director, Global Immigration, Talent Deployment & Mobility, IBM
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Council-SHRM Proposed Solution
To truly grow our economy and create jobs, employers need effective tools to ensure they are hiring a legal workforce that eliminates the redundancies that exist in the system today. While USCIS should be commended for the improvements it has made to E-Verify, the program requires additional changes to make it more reliable and user-friendly. Real, reliable reform must ensure that any mandatory employment verification system builds on E-Verify's success and addresses its flaws. More specifically, reform should:
- Preempt the growing patchwork of state laws with one reliable and secure federal employment verification system. Click on the image for a state-by-state map of the current state and local verification laws with which U.S. employers must comply.
- Create an integrated entirely electronic verification system that incorporates the E-Verify system with an attestation system and ends the duplicative requirement that an employer also complete the paper Form I-9.
- Prevent identity theft through identity authentication. E-Verify does not fully protect employers from identity fraud. While a "photo tool" is available for some documents, it is not as reliable as an identity authentication option because it relies on human judgments that can fail and documents that can be faked. Employers should be provided with stronger tools to combat identity theft and complete employment verification. Click on the image to learn more about how susceptible the current system is to identity fraud.
- Ensure safe harbor from liability for verification users. Any employment verification system must protect employers from liability when they rely on government approvals of erroneous authorizations. A safe harbor must also exist for employers who use subcontractors without knowing the subcontractors hire or employ unauthorized workers.
- Apply employment verification only to new hires. Absent compelling national security concerns, reverification of existing employees is redundant, expensive and burdensome.
- Protect 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 process to correct these errors, including an ombudsman to help employees navigate the process.
"While E-Verify has become very effective in matching a name with a Social Security number, it is not effective in making certain that the employee is who he or she claims to be on the form I-9. … For the system to be effective, additional steps are necessary to stop identity fraud."
-Austin T. Fragomen, Jr., Chair, Council for Global Immigration, Congressional Testimony, April 14, 2011
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The Current E-Verify System is Susceptible to Identify Theft
E-Verify is the current federal electronic employment verification system and 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 U.S. Citizenship and Immigration Services (USCIS), in partnership with the Social Security Administration (SSA). It is a voluntary system, and only 6 percent of the 6.5 million employers nationwide are currently enrolled in E-Verify. Requiring all employers to enroll in and use the system would mean a major ramp up, making reliability, accuracy and efficiency all the more critical.
"E-Verify is an important tool for employers who want to help ensure they are employing legal workers. … Prevention of identity theft in E-Verify is important. ... Combining E-Verify and the I-9 together will be a strong inducement for employers to join E-Verify."
-Representative Sam Johnson (R-TX), Chairman, House Subcommittee on Social Security, Congressional Record, September 13, 2012
Today, employers that participate in the E-Verify system must also complete the paper-based Form I-9, which must be completed for all new hires. Certain biographical information is entered by employers into an online interface, which checks databases first at SSA and then, if necessary, at DHS 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 stop the unauthorized use of names and Social Security numbers of other work-authorized persons. Identity theft is the Achilles heel of the E-Verify system, and Congress must address this problem in any reform measure so that employers are not vulnerable to sanctions through no fault of their own.
Growing Patchwork of State and Local Laws Make Federal Solution Imperative
E-Verify remains voluntary except when it is mandated by federal or state law. As of September 8, 2009, federal law requires certain employers awarded federal contracts to use E-Verify. Additionally, a number of states, and even cities and counties, have enacted laws that require employers to use E-Verify or complete additional verification requirements that sometimes conflict with federal laws.
"Our members support a national, mandatory entirely electronic employment veri¬fication system that provides employers with a fast, reliable method to con¬firm work eligibility. A fully electronic system that includes a seamless identi¬fication authentication will give employers the tools they need to keep illegal workers off their payrolls and to hire legal workers quickly, fairly, and with confidence."
-Mike Aitken, Vice President, Government Affairs, SHRM
State actions have been 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. However, given the panoply of varying state and local laws to which U.S. employers with multiple locations are subject, it is imperative that Congress preempt these laws with one reliable federal system so there is just one set of rules with which employers must comply when verifying their workforce.
Ultimately, U.S. employers need one federal employment verification system so that they can hire with certainty, knowing that those they employ are in fact authorized to work in the United States.
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