A critical component of the Border Security, Economic Opportunity, and Immigration Modernization Act (S.744), introduced April 17, 2013, is a provision that would require all employers to participate in an enhanced E-Verify-type program.
E-Verify is an electronic employment eligibility verification system that determines whether information provided in a new hire’s Form I-9 (Employment Eligibility Verification form) matches government records. It is currently a voluntary program except for some federal government contractors and employers based in a few states.
“Employers have realized since 1986 that we have a role to play in the employment verification process, but it shouldn’t be that of enforcement cops,” said Mike Aitken, vice president of government affairs at the Society for Human Resource Management (SHRM). “It should be to give a clear yes or no, determine if this person is authorized to work, and be done in a reasonable period of time.”
Aitken said that while the bill lays the groundwork for an effective verification system, SHRM is very concerned about certain aspects that “are stuck in the past and don’t move the ball forward.” Issues include the lack of an entirely integrated employment verification and attestation system, identity-authentication methods, new discrimination provisions and the lengthy appellate process for nonconfirmed applicants.
Phase In Over Five Years
The bill would phase in employers’ obligation to use an E-Verify program over five years.
All federal agencies would be required to use the program beginning within 90 days of when the law was passed if they’re not already required to do so. One year after the Department of Homeland Security (DHS) issues rules, public and private “critical infrastructure” employers could be directed to use the program. Within two years of when regulations are published, all employers with 5,000 or more workers must be signed up for E-Verify. Within three years all employers with more than 500 workers must be signed up. Agricultural and all other employers have four years to sign up after regulations are issued. E-Verify would not be required for an employer’s existing workforce.
“The phased-in implementation period for employers, based on employer size, is a good idea,” said Dan Brown, an immigration attorney at Fragomen, Del Rey, Bernsen & Loewy, based in Washington, D.C. “It will take some time to develop the procedures and build a system with the capacity to handle the vast number of queries that will be required when all employers are mandated to use the system,” he told SHRM Online.
John Fay, vice president and general counsel at LawLogix Group, described E-Verify’s concept as simple and straightforward, though “the actual execution can be daunting, as it introduces new compliance obligations and rules which are time-sensitive.”
Employers will want to make sure they develop new processes and procedures to streamline the onboarding of a new hire and ensure consistent application throughout the hiring process, Fay said.
Employers aren’t the only ones that will need time to prepare for the universal system.
U.S. Citizenship and Immigration Services (USCIS), tasked with overseeing the program, will need to be prepared, as well.
“On the employer side, it may not be enough time to prepare for the very extensive requirements of the program, and on the agency side, it may not be enough time to prepare for the vast amount of resources it will take to administer and enforce this program,” said Nataliya Rymer, an attorney at Greenberg Traurig based in Philadelphia.
And while the bill’s prescribed E-Verify rollout provides a grace period for smaller employers, there is no special exemption for the smallest organizations.
“Unfortunately, there is no exemption for employers [with] under 25 employees,” Peter Asaad, an immigration attorney and managing partner of Immigration Solutions Group, told SHRM Online. “This may have a chilling effect on startup companies that will be faced with a disproportionately high cost [that] a larger, pre-existing company [would not face].”
Julie Myers Wood, president of compliance, federal practice and software solutions at Guidepost Solutions, sees problems with the extended rollout.
“The ramp-up time is too long,” the former head of Immigration and Customs Enforcement told SHRM Online. “When you combine the long ramp-up time with the prohibition on using E-Verify for existing workers, it means that there are going to be large numbers of employees who will never go through E-Verify and employers who could try to game the system to keep unauthorized employees in place.”
The bill stipulates that DHS could require employers charged with being immigration violators to sign up for the program earlier than mandated. And employers could still voluntarily participate before the required-by date. Failure to use E-Verify would be considered a civil infraction. Penalties for this have not yet been established.
However, the penalties (effective one year from the date of enactment) for hiring or continuing to employ unauthorized workers have been raised and are set at $3,500 to $7,500 per worker, $5,000 to $15,000 per worker for employers with one previous violation, and $10,000 to $25,000 per worker for businesses with three or more violations. Record-keeping or verification penalties run from $500 to $8,000, depending on the number of violations. Federal contractors with more than three violations can be debarred from receiving federal contracts.
Good Faith Compliance
The bill expands and clarifies employer good-faith defenses for paperwork and de minimis violations, such as failure to obtain verification from the system in the proscribed time frame. Critics had argued that employers who rely in good faith on E-Verify results were exposing themselves to liabilities. This bill carves out protections for companies based on good-faith reliance on E-Verify results, explained Ann Cun, an immigration attorney and counsel at LawLogix.
Even so, immigration attorney Brown is concerned with the bill’s removal of language from current law that there be a discriminatory intent on an employer’s part when reviewing employee documents before it can be liable for what is known as “document abuse.”—i.e., when an employer asks for more or different documents than a worker may be required to show to complete an I-9 form or refuses to accept a document that appears valid.
“In the vast majority of cases where this happens, in my experience, it is simply the result of a mistake on the employer’s part and a misunderstanding of the I-9 rules by staff,” he said.
Also troubling, said Brown, are several new violations the bill would create, virtually none of which require intent to discriminate.
“The most egregious example, in my view, is the failure of an employer to provide an employee with a system notice within the required system timelines. So if an employer mistakenly provides a system notice to an employee one day later than required, that would constitute a violation, regardless of whether there was any intent to discriminate on the employer’s part and regardless of whether there was any actual adverse action taken against the employee as a result of that inadvertent failure.”
The bill would expressly protect all workers by allowing them to pursue remedies under workplace and labor laws, regardless of their unauthorized status. Remedies include those that are allowed under federal, state or local laws governing wage and hour, benefits and employment standards, labor relations, workplace health and safety, work-related injuries, nondiscrimination and retaliation.
Form I-9 is not going away. “All indications thus far point to an expansion—rather than a replacement—of employers’ responsibilities with regards to employment-eligibility verification,” said LawLogix’s Fay.
Employers will still need to complete a verification form to attest that they have verified an individual’s identity and employment authorization status. What’s new, Fay noted, is that businesses may also complete this form via telephone or through some future integration with the E-Verify system.
Wood was disappointed that the bill didn’t explicitly eliminate the I-9. “It still appears to rely in part on a system outside E-Verify,” she said. “I think that there should be an effective way to collapse the I-9 and E-Verify process.”
“This is an opportunity to integrate the electronic and paper systems and make it entirely electronic, and it’s not done in this bill,” agreed Aitken.
The list of documents used for employment verification would be narrower than the one that is currently used to complete Form I-9.
Under the bill an employee would have to present one of the following: a U.S. passport or passport card, a valid document showing work-authorized status with a photograph of the bearer and security features, an enhanced driver’s license that meets the requirements of REAL ID and is certified for use by the DHS, or a foreign passport accompanied by a form indicating work-authorization status.
The bill would require certain enhancements of the current program, including requiring noncitizen hires to have either a biometric work authorization or biometric green card and other anti-identify-theft measures. The applicant would present an identity document with a photo, and the employer would have to match that photo with the applicant and a photo in the DHS database.
“There’s still a lot of uncertainty about how the E-Verify photo-matching process will work for citizens who do not possess a U.S. passport,” said Fay. Companies will be able to accept only a driver’s license if the citizen’s state has agreed to submit a photo to E-Verify. Presently, there are just two states—Mississippi and Florida—that are willing to submit any kind of data to E-Verify, while many other states have resisted for privacy reasons.
There is a lot of potential for error in the photo-matching provision, said Rymer.
“There’s too much subjectivity in that system that could trip an employer up,” agreed Aitken.
He said he’d rather see the photo tool eliminated and more emphasis on using a more robust version of the E-Verify Self Check system, which would use increasingly complex identity authentication techniques.
The bill instructs the Social Security Administration to develop a new fraud-, tamper-, and identity-theft-resistant Social Security card within five years of the measure’s enactment. The legislation also includes a method for individuals to “lock” their Social Security number in the E-Verify system so that it cannot be fraudulently used.
Don Crocetti, founder and principal managing member of the Immigration Integrity Group, believes that the identity security measures don’t go far enough.
Crocetti, a former senior USCIS official, suggested a 100-percent biometrics-based verification system to combat document fraud. “Legislating a program that could attract as many as 11 million undocumented people is the ideal time to do this, as all applicants will have their biometrics collected,” he told SHRM Online.
The bill calls for the employer to notify the applicant and provide information about appeals and a hearing and attest that he or she has done so within three business days of receiving a nonconfirmation notice. Individuals who wish to appeal a nonconfirmation would have 10 business days to file an administrative appeal. If the individual didn’t file an appeal after 10 days, he or she would be denied a review. After a review, an applicant would have 30 days to file an appeal with an administrative law judge (ALJ), resulting in an automatic stay of the nonconfirmation. The employer could be ordered to pay the individual lost wages, reasonable costs and fees if the nonconfirmation were due to the employer’s gross negligence or intentional misconduct.
Brown explained that the determination before the ALJ, a step that doesn’t currently exist, “will almost certainly take many months, if not more than a year, and during all this time an employer cannot terminate the employee.”
While agreeing that there needs to be mechanisms for fixing system mistakes, Brown nevertheless added that “it will be extremely burdensome for employers to have to track these various review and appeal periods, and the results of these appeals, and to continue to employ workers for long periods of time who the system has already indicated are not work eligible and who almost certainly will have to be terminated at the end of the process.”
The provision allowing applicants who receive a nonconfirmation to obtain a U visa (created for crime victims) by claiming that the E-Verify program caused harm is “unhelpful” to employers, said Janice Kephart, national security policy fellow at the Center for Immigration Studies and a former counsel on the 9/11 Commission.
“To make matters more confounding, S. 744 adds unlawful employment practice to the lengthy list of U visa grounds to apply for a visa,” Kephart said. “This means that an alien that fails E-Verify confirmation despite repeated, and possibly frivolous, time-consuming and costly appeals can claim harm from the E-Verify process and get a U visa.”
The cost and accuracy of the system are further concerns, according to several experts and stakeholders.
The Congressional Budget Office estimated that a national E-Verify mandate would cost, on average, $1.2 billion annually, not including DHS personnel costs (the hiring of thousands of new enforcement agents would bump the price tag higher).
A national E-Verify system would be costly for employers, too. Based on the estimates in the DHS’ Regulatory Impact Analysis for its 2008 E-Verify mandate for federal contractors, employers nationwide would spend $4.1 billion setting up, training and implementing the new system.
On a positive note, E-Verify’s accuracy rate has gotten much better since its debut, in 1997.
USCIS Associate Director Soraya Correa, who is responsible for overseeing the program, said the agency continues to improve E-Verify’s accuracy by increasing the number of databases that the system checks. “As a result of these efforts, a review of FY 2012 data found that approximately 98.7 percent of prospective employees were confirmed as work-authorized, either automatically or within 24 hours,” she said. The remaining 1.3 percent contained a mix of tentative nonconfirmations (TNCs) based on errors and TNCs indicating the person was not authorized to work in the United States.
Those numbers are still problematic for some. “Indeed, if all U.S. employers were required to use E-Verify right now, at the current error rate under E-Verify, we would see roughly 1.7 million errors—potentially keeping an alarmingly high number of lawful U.S. workers from working,” said Asaad.
To ensure that E-Verify will increasingly become more accurate, the bill would require the General Accounting Office to conduct an annual study on E-Verify’s accuracy, efficiency, integrity and impact. DHS is also called upon to produce an annual report.
“Given that the last independent report on E-Verify stats was conducted in 2009, I’m very excited to read this portion of the bill,” said Cun.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
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