lthough most immigration policy is stuck in a political quagmire on Capitol
Hill, one dimension that raises employer anxiety has to be addressed this year.
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.
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