Prime Time For E-Verify

Contractors will have to check their employees immigration status, but is the system ready?

For the past decade, E-Verify has been a useful, albeit scarcely used, tool for public and private sector employers to check the immigration status of new hires. Originally known as the Basic Pilot/Employment Eligibility Verification Program, the Homeland Security Department program has faced more than a few hiccups in recent years, including disclosures about employers misusing the system and inaccuracies that forced U.S. citizens to jump through hoops to prove they were in the country legally.

Now DHS is bracing itself for the largest expansion yet of the controversial E-Verify program. In June, President Bush signed an executive order requiring federal contractors to vet all new employees through the system. In addition, when a company wins a contract, the names of employees hired before Nov. 6, 1986-when Congress amended the Immigration and Nationality Act-will be run through E-Verify, which is fed by a Social Security Administration database. The proposed rule, which is open for public comment through Aug. 11, exempts contracts limited to materials or commercially available products, performed outside the United States or valued at less than $3,000.

Federal agencies are required to confirm the status of all new government hires through E-Verify. And while Arizona and Mississippi have passed state laws requiring all employers to use the system, elsewhere across the country, participation is voluntary. From June 2004 through March 2007, employers conducted nearly 3.5 million verification attempts. Use of E-Verify has grown rapidly in the past year, and 69,000 employers already have vetted nearly 4 million potential workers in fiscal 2008, DHS says.

But the addition of the massive and growing contracting workforce is likely to immediately double the number of companies using E-Verify. According to government figures, within the first year of the program's expansion, nearly 170,000 contractors and subcontractors are expected to enroll in the system, verifying the status of 3.8 million employees. "If we expect private employers to use E-Verify, the federal government should lead by example and not merely by exhortation," says Homeland Security Secretary Michael Chertoff.

Numbers alone, however, do not provide a complete picture of the logistical challenges that await DHS as it attempts to impose E-Verify on a vast and somewhat skeptical new audience. A September 2007 report conducted by Westat, a contract research group based in Washington, uncovered widespread misuse of the program by private employers. The report found that some were using E-Verify to screen job applicants, rather than waiting to use the system after hiring them.

Other companies failed to inform new hires that they had received a tentative nonconfirmation letter-indicating that the employee's name and Social Security number did not match up in the database-and simply fired them. Legally, workers are allowed to contest the findings, and only if they cannot prove their legal status to SSA can they be fired.

More troubling, however, is a December 2006 report by SSA's inspector general that said the error rate for the E-Verify database was 4.1 percent. DHS says the glitches have been fixed and the error rate has been reduced to 0.5 percent.

But immigration reform advocates dismiss Homeland Security's latest figures as disingenuous because most of the names in the database have never been tapped and a large percentage of workers who receive tentative nonconfirmation letters fail to contest their status. Michele Waslin, senior policy analyst at the American Immigration Law Foundation's Immigration Policy Center in Washington, says some workers simply do not receive these letters from their employers while others choose not to fight the findings because they've found another job.

"This is just not an effective solution to our immigration problem," Waslin says. "It's just another attempt to slap a Band-Aid on a larger problem. Mandatory verification cannot work without comprehensive immigration reform."

Critics have voiced concerns about how DHS plans to enforce the executive order. Per the terms of their contract, companies would have to sign a document agreeing to participate in E-Verify, but there does not appear to be a system in place to confirm they have done so. Spot checks and periodic system reviews are possible, but verifying every company's compliance could be next to impossible.

Others say the punishment for companies that fail to terminate the employment of nonverified workers is too lenient. These companies face a fine of $500 to $1,000 but would not necessarily lose their contracts or face suspension or debarment, says DHS spokeswoman Amy Kudwa.

Even proponents of E-Verify have reservations about the program's rapid expansion and believe the system has significant room for improvement.

Ed Petersen, co-founder and executive vice president of Intelius Inc., a Washington state-based company that provides employment screening services, says DHS' reliance on a single source of data such as E-Verify can provide limited and often unreliable results. He suggests that the agency widen the program's scope and resources by integrating criminal and other public records checks into the E-Verify system.

"A simple check of 'are they qualified to work in the United States' is not getting you much," Peterson says. "If you really want to be a responsible employer and you want to create a safe work environment then you want to do an employment screening background check, which is more comprehensive than simply doing a [Social Security number] or I-9 [employment eligibility] verification."

Despite the criticism, Chertoff says E-Verify is working as intended and should be capable of handling the contractor expansion order.

"This system is doing the job it should do," he says. "It is resolving honest mistakes in a way that protects the worker. It is also identifying those who are not permitted to work because they are not here legally. And that's what it should do."