Congress Hears Ideas for Improving E-Verify, Protecting Employers

By Kathy Gurchiek Apr 22, 2011


Clearer guidance on how to handle Social Security number mismatches, incorporating biometric techn​​​ology and allocating sufficient resources for “cleaning up” Social Security Administration (SSA) records would go a long way to preventing the hiring of unauthorized and illegal workers.

That was Austin T. Fragomen’s message to a congressional subcommittee on April 14, 2011. He gave oral and written testimony as chairman of the American Council on International Personnel (ACIP) and on behalf of a coalition led by the Society for the Human Resource Management (SHRM) and ACIP, HR Initiative for a Legal Workforce.

Fragomen spoke about the SSA’s role in verifying employment eligibility to a House Ways and Means Subcommittee on Social Security.

The Immigration Reform and Control Act of 1986 made it illegal for employers to knowingly hire immigrants who were not authorized to work in the United States. It required employers to examine documentation from each newly hired employee to provide identity and eligibility to work.

The hearing examined the employment verification systems available for employer use, including the largely voluntary, free, Internet-based E-Verify system that the U.S. Citizenship and Immigration Services administers within the Department of Homeland Security in partnership with the SSA. In addition, it focused on potential burdens to employees, employers and the SSA; examined E-Verify’s shortcomings, and heard suggestions on improving the verification process.

About 4 percent of U.S. employers—or more than 250,000— are registered to use E-Verify, which is scheduled to expire in September 2012 unless extended by Congress.

“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 I-9 form,” Fragomen told the committee.

The I-9 is an employment eligibility verification document requiring employees to attest to their eligibility to work. Some states, the federal government and certain federal contractors and subcontractors mandate its use.

However, E-Verify is vulnerable to identity theft and employer fraud, according to a Government Accountability Office report issued Jan. 18, 2011.

“It’s very frustrating to companies that have to go through this process. They have to accept the document given to them by the employee, as long as it looks reasonable on its face. … If they ask for additional documentation they could easily be accused of discrimination,” Fragomen said.

“It puts the companies in an extremely difficult position. And of course if it turns out the document is fraudulent, then the employer’s whole business is at risk.” Subsequent enforcement could cause them to “lose a big portion of their workforce” or even close their doors.

The employer community has seen “an unprecedented level of scrutiny” by Immigration and Customs Enforcement in the past two years, Fragomen said in prepared remarks.

“My point is not that the government should not conduct raids or audits,” he said, but that it should explore why an employer completing all of the appropriate paperwork and using E-Verify can have unauthorized workers on staff.

It’s also not necessary, he said, for all employers to reverify their entire workforce. That is required of all federal contractors and subcontractors. The idea of expanding that—which would be costly—is a major concern for many employers, observed Fragomen. Instead, the provision should apply only to new hires, he said.

Employers that obey the law but find that they have hired unauthorized workers want “a true safe harbor,” he said. Currently, they lack clear guidance on how to proceed when informed that an employee’s Social Security number does not match government records. Additionally, there is no assurance when it does match that the employees are not victims of identity fraud, he added.

It’s also important, he said, to protect the rights of workers “who are legally in the workforce, regardless of appearance, accent or citizenship status.”

There should be “adequate resources dedicated to Social Security,” Fragomen said, so that the system is fully electronic and incorporates biometrics or other fraud-prevention techniques to pre-emptwhat he called in written testimony “the confusing patchwork of state laws.”

However, one subcommittee member, noting 2011 federal budget cuts and possible cuts to the SSA in the 2012 budget, questioned whether the SSA could “ramp up without sufficient resources.”

Others appearing before the committee:

  • Richard M. Stana, director, homeland security and justice, U.S. Government Accountability Office.
  • Marianna LaCanfora, assistant deputy commissioner, Office of Retirement and Disability Policy, SSA.
  • Tyler Moran, policy director, National Immigration Law Center.
  • Ana I. Anton, Ph.D., professor, Department of Computer Science, College of Engineering, North Carolina State University, on behalf of the Association for Computing Machinery.

Fragomen’s Washington, D.C.-based law firm Fragomen, Del Rey, Bernsen & Loewy, LLP, specializes in immigration issues.

Kathy Gurchiek is associate editor for HR News.

Related Articles:

Social Security Administration Resumes No-Match Letters, SHRM Online Legal Resources, April 2011

GAO: E-Verify Continues to Have Significant Challenges, SHRM Online Legal Resources, January 2011

Related Resource:

Access to Human Capital and Employment Verification, 2006 SHRM Report


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