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E-Verify Fails to Cover Company From Immigration Raid

September 2, 2008
Howard Industries, a Mississippi manufacturer of electrical products, is the latest example of a company being targeted for immigration enforcement despite using a government-run employment verification system.

The incident, however, is unlikely to derail legislation to extend the program’s authorization or to affect a proposed federal regulation to make the government system, called E-Verify, mandatory for federal contractors, some say.

U.S. Immigration and Customs Enforcement arrested 595 Howard workers suspected of being illegal in an August 25 raid that likely will add fuel to smoldering opposition to the government verification system by business groups.

“Howard Industries runs every check allowed to ascertain the immigration status of all applicants for jobs,” the company said in a statement. “It is company policy that it hires only U.S. citizens and legal immigrants.”

The 595 workers were charged with identity theft and fraudulent use of Social Security numbers.

“What this will do is focus employers on compliance in general, but E-Verify is an ineffective compliance tool because it doesn’t protect against identity theft,” says Eric Bord, a partner at the law firm Morgan Lewis in Washington. “It has the perverse effect of encouraging identity theft.”

A raid at Swift & Co., a large food-processing firm, in December 2006 resulted in the arrests of nearly 1,200 suspected illegal workers on identity-theft charges. Swift was using E-Verify at the time.

E-Verify, which checks information from I-9 forms against Department of Homeland Security and Social Security Administration databases, cannot tell if a worker is submitting a stolen Social Security number. That is one of the primary criticisms leveled against the system by the HR Initiative for a Legal Workforce.

The organization, led by the Society for Human Resource Management, also cites a Social Security database error rate of 4.1 percent that could wrongfully declare millions of people ineligible for work. E-Verify backers say it has demonstrated an error rate of less than 1 percent.

Howard Industries has been using E-Verify since 2007. It is one of about 78,000 companies that have signed up for the system. Almost all of the corporate participation is voluntary, but Mississippi is one state that has mandated companies to use the system.

The law that authorizes the program is set to expire in November. On July 31, the House approved a five-year extension of E-Verify as a voluntary program. Senate action hasn’t been scheduled.

Many Democrats and some Republicans want to overhaul or junk E-Verify. Most Republicans and some conservative Democrats praise it for helping reduce the “jobs magnet” that fosters illegal immigration—and want to make it permanent and mandatory for all employers.

Democratic leaders and Republicans agreed that there is not enough time left in this year’s congressional session for the wider verification debate. Congress can modify E-Verify at any time during the five-year extension.

The Department of Homeland Security has made E-Verify the cornerstone of its compliance efforts and is encouraging companies to sign up.

That will be a tough sell, according to Bord, because there’s no upside to participating in E-Verify.

“Employers who have effective I-9 compliance programs derive no additional benefit in defending themselves against an investigation by ICE,” he said.

In addition to pushing voluntary E-Verify adoption, Homeland Security is working on a regulation that would require federal contractors to use it to check existing employees and new hires. It is compiling public comments on the rule.

One organization that has filed a negative assessment of the regulation is the U.S. Chamber of Commerce.

“The E-Verify system is not ready for prime time,” said Randel Johnson, the chamber’s vice president of labor, immigration and employee benefits.

Johnson contends that Homeland Security is overstepping its authority by trying to make the program mandatory.

“We think that’s contrary to the congressional statute,” he said. It’s not clear whether the regulation will become final before the Bush administration leaves town.

No matter the outcome, Bord said E-Verify would continue to be central to federal work-site enforcement until comprehensive immigration reform was revived on Capitol Hill.

Companies should ease their transition to E-Verify by establishing an electronic I-9 process to ensure immigration compliance, Bord said.

“If you get it wrong, the damage is critical,” he said.

—Mark Schoeff Jr.

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