The law that established the government-run electronic work authorization system, known as E-Verify, will expire in November. The mechanism, formerly called Basic Pilot and introduced 10 years ago, will check information from I-9 forms against databases at the Department of Homeland Security and the Social Security Administration.
So far, about 56,000 employers have voluntarily signed up to use the system. But many more are avoiding it. The Society for Human Resource Management and several other HR groups charge that E-Verify is inefficient, prone to error and incapable of being ramped up to handle traffic from all 6 million employers in the country.
The HR Initiative for a Legal Workforce, which is led by SHRM, cites statistics from a study showing that the Social Security database, upon which E-Verify relies, has a 4.1 percent error rate, which could amount to 6 million people mistakenly denied employment.
The organization also points to the experience of Swift & Co., a large food processing firm, to show that E-Verify cannot detect identity fraud. Although Swift used the system, it was still the subject of a DHS raid in December 2006 that resulted in the arrests of nearly 1,200 illegal workers who had stolen identities of U.S. citizens.
Supporters of E-Verify staunchly defend the system. Rep. Ken Calvert, R-California, says it instantly verifies 93 percent of new hires and that only 1 percent of the remainder contest the results. Calvert has introduced legislation that would extend E-Verify for 10 years.
Another bill—one that has drawn bipartisan support—would mandate that all employers sign up for E-Verify within four years and that all employees be run through the system. The Democratic House leadership is not enthusiastic about the measure, written by Rep. Heath Shuler, D-North Carolina. So supporters, led by Republicans, have mounted a drive to bring it directly to the House floor.
As an alternative to the Shuler bill, HR groups are promoting the New Employee Verification Act, introduced by Rep. Sam Johnson, R-Texas. The bill would mandate that employers submit information electronically only for new hires to the Social Security Administration through a child-support enforcement system already in place in each state.
About 90 percent of U.S. employers use that system. The identity of prospective employees would be checked against Social Security and Department of Homeland Security databases. The procedure would eliminate the paper-based I-9 process.
Under the bill, employers would be given the option of signing up for a secure electronic verification system that uses a network of government-approved private contractors to conduct background checks of workers and collect biometric identifiers, such as fingerprints.
It’s unclear how any immigration legislation will fare this year, after the politically acrimonious collapse of a Senate measure last year that would have strengthened border and workplace enforcement while creating a path toward legalization for the nation’s approximately 12 million illegal workers.
Provisions of that bill would have substantially expanded E-Verify. In lieu of comprehensive legislation, the Bush administration tried to attach riders to appropriations bills last year that mandated that all federal contractors use E-Verify. That effort was fought off by SHRM and other HR groups.
DHS also is trying to promote E-Verify through the regulatory process. On April 8, the agency issued a rule that would extend from 12 to 29 months the amount of time that foreign-national students in science, technology, engineering and math are authorized to work for a U.S. company on a student visa.
That adjustment was sought by technology firms that say they are desperate for talent. But in the regulation, DHS stipulated that companies can only take advantage of the program if they use E-Verify.
"This is the big poison pill," says Kirsten Schlenger, an attorney with Weaver Schlenger & Mazel in San Francisco.
Schlenger is concerned that the system lacks the infrastructure to confirm the residency of high-skill immigrants. Some of her clients may be forced to turn away potential hires or fire current employees whose work authorization has not been properly entered into government databases.
"High-tech companies need to hire immediately," Schlenger says. "The stakes are high."
She wonders how many other benefits will be linked to E-Verify.
"It’s not that I’m opposed to E-Verify in theory," Schlenger says. "I’d like to see that it has thought and resources put into it before it’s implemented so that employers don’t suffer."
In a political atmosphere that favors enforcement, it may be more important for Congress to satisfy constituent demand for an immigration crackdown by extending E-Verify than to address employer concerns about the system.