By Julie Myers Wood and Dawn Lurie

A recent report conducted on behalf of US Citizenship and Immigration Services (USCIS) by Westat highlighted what some employers using E-Verify know all too well – when unauthorized workers roll the dice and try to get a job, far too often the E-Verify system lets them win.

The Westat report estimates (admittedly using very rough math) that the inaccuracy rate for unauthorized workers on E-Verify is 54 percent. 54 percent! Those are incredibly tempting odds for those seeking employment. Considering all of the improvements made to the E-Verify system over the past two years, this report is disappointing but will surely serve as a motivator for the government to place additional focus on the number of false positives passing through the system.

Unfortunately, without a very focused intervention, this problem will continue to grow.  Unauthorized workers know that if they fail to pass the E-Verify system, they have nothing to lose – there is no real penalty associated with trying. ICE is no longer routinely conducting enforcement actions at worksites. A final failure in the E-Verify system is that even in cases where the worker admits to unlawful status, that does not trigger a government notification or removal proceedings. At most, the unauthorized workers know that they will be fired, and they will simply have to look for a job down the street. On the other hand, employers, even those who use E-Verify as a best practice, can still face all types of serious penalties as a result of hiring these unauthorized workers.

What does this mean? It means E-Verify will need to continue to improve their system and their ability to recognize “identity theft.” It also means unauthorized workers will become more creative in their efforts to game the system and get a job. We hear this from companies all over the country. They are seeing new trends of job applicants engaging in identity fraud, and they are finding that document vendors are becoming more sophisticated with the advice they are sharing with their “customers,” including how to present their fraudulent documents or identities.

These unauthorized workers are routinely claiming to be U.S. citizens and not foreign nationals with work authorization or permanent resident cards.  The reason for this is simple:  the E-Verify photo tool has reduced the market for fraudulent green cards, particularly in industries where there is a high rate of E-Verify participation. Individuals who claim to be U.S. citizens, however, are not subject to a photo-screening tool.

The rumor mill also seems to drive applications – unauthorized workers are seeking out companies that rely solely on E-Verify for screening, versus companies that engage in broad compliance programs and additional steps to obtain an authorized workforce.

Given this problem, what should be done? Although some have suggested that the inability to detect identity fraud is an easy reason to discard the E-Verify system, that answer ignores all the positive things that E-Verify accomplishes and the improvements that USCIS has already made to the system. Instead Congress should provide USCIS more immediate ways to increase the effectiveness of E-Verify.

One possible solution would be to enforce legislation (and provide much needed funding to the states) to make driver’s licenses secure – such as Real ID or similar legislation.  Much of the identity fraud comes from states where it is still far too easy to get a driver’s license or state ID with someone else’s documents. In addition, Congress could provide incentives for states to include driver licenses and identification cards in the databases for use with the photo-screening tool. This will not solve the problem of identity theft, but it will help reduce it. Congress should also consider biometric enhancements to the E-Verify system, either as stand-alone legislation or as part of an immigration reform bill.

Next, DHS should stop using misleading “advertising” for E-Verify. Recent ads read: “Employment Verification – E-Verify – Done.”

This is not entirely accurate and actually leads employers to have a false sense of security that once they have DONE E-Verify, they have an authorized workforce. Instead, USCIS and ICE should continue to promote the program, not as a comprehensive solution, but rather, as an important step in an overall compliance plan.

Another area where E-Verify needs to do a better job is advertising the potential discrimination issues that can easily arise with a lack of training and/or misuse of E-Verify program. Increased outreach efforts must be combined with the assistance of DOJ’s Office of Special Counsel (for Unfair Immigration Related Practices).

Finally, when it comes to E-Verify, employers can’t simply sign up and forget it. The program, as well as general I-9 compliance, needs to be budgeted for, implemented correctly, audited continuously, analyzed appropriately and monitored internally.  Ensuring corrective action is taken when necessary is key in the immigration compliance arena.

As part of an overall written compliance plan, employers should further develop a system, using standardized methods and/or off-the-shelf tools to address identity fraud and allegations of such fraud. Common tools used include background checks, questioning techniques, and analysis of trends and patterns. Care must be taken to avoid any discriminatory practices, and proper training and oversight is essential for these programs to succeed. Without using the appropriate practices that make sense for a particular business, however, an employer is highly likely to fail in their goal of obtaining a fully authorized workforce.

It is expected that the government will take some steps to make the E-Verify system better address identity theft, but improvements will not appear overnight. In the interim, employers who have been forced into formal compliance programs (such as federal contractors), or those who just want to ensure such immigration compliance, will need to be vigilant in expanding best practices and staying ahead of those out to beat the system.

To be fair, the Westat report makes clear that with enhancements, the E-Verify program can be effective. But that does not alleviate the frustration levels of employers trying to do the right thing, right now. It is the identity fraud and the uncertainty of E-Verify that make it difficult for these well-intentioned companies to fully comply with the law.

When it comes to immigration compliance, the government has too often left employers holding the bag and responsible for navigating the quagmire of confusing enforcement programs, unimplemented regulations and conflicting policies. Combined with additional resources to assist employers, as well as a true incentive for companies to clean up and fully comply, E-Verify can be a model tool to help resolve employment eligibility issues.  But to be that model, Congress must support USCIS and listen to the findings of reports such as Westat, which often only confirm what employers have been telling the government all along.

  • Brittanicus

    This is–WHY–E-Verify must be fully funded, permanent and using the money to make the program a keystone of immigration enforcement. It's being updated constantly with new innovations including using green card holders and complimentary data bases. No! its not been perfected yet, but give it time? There are many business elements that doesn't want the program to succeed, nor thousands of other organizations that have a ominous reasons which is power-money and large profits. E-Verify is not going the way of the Do-Do.bird, as it will get stronger and it's databases cross-reference with perhaps even with IRS and Census records. Even now politicians are trying to substitute E-Verify, for some other tool. I don't trust them as they will do anything to undermine any working tool. With the technology we have inherited today, we can mandate its use and hire the top computer engineers to perfect its ability, to deport every illegal immigrant in America.

    Not the 12 million facade that we have brain washed with, but the–REAL–number of somewhere between 20 and 30 unauthorized foreigners bleeding our nation dry. E-Verify in its second generation performance, could be used to drivers license irregularities, vehicle registrations, insurance fraud, along with house mortgages, health care and much more. Every local police department should be funded to train its police in the 287 (G) program, with instruction to arrest and hand over to ICE. Then ICE should not be blocked by a wimpy Janet Napolitano, who has ordered the agents to slowly desist on immigration raids. Perhaps the inception of the “TEA PARTY” movement has an agenda to stop this absolute travesty of our immigration enforcement? Immigration is one big game, playing with peoples lives. It starts with national security? Politicians pushing New Employee Verification Act, or NEVA, is just another hold-up, to staunch the use of E-Verify. Just more corrupt lawmakers who owe favors to parasite business groups, who want to see the end to E-Verify.

    Even if a Comprehensive Immigration Reform bill passed, do we really think that the hundreds of thousands of criminal illegal immigrants walking the streets is coming out of the so called shadows? Neither are they going to answer the door to the adjudicator, who is out counting the population for the 2010 US Census. They will run and hid, because the came here illegally thumbing their noses at The People's Law and don't trust the US government. Let's face it, a great majority of the American people cannot trust the government, because they continuously lie to us. Two politicians that must–GO–in the midterm elections is Sen. Harry Reid and Speaker Nancy Pelosi. Has anybody ever considered the fact that no immigration enforcement tool ever really–WORKS. The fence-No Match letter-ICE raids.

    ALL WERE COMPROMISED. The First line of defense the International fence was meant to be a double barrier, not a single fence. Places in Indian reservations and barren areas have no restrictions, no tower, no sensors, no cameras. No match letter was rescinded. ICE raids have been cut well back by Napolitano. Border states need a lot of help? They are uninterrupted by the illegal immigration invasion. That's why states like California that refuses to immunize itself against the invasion and need budgetary stewards like Steve Poizner, as a new governor who promises to fight back against supporting illegal alien families public entitlements Sen. Shelby shows his support for rescinding the instant Birthright Citizenship for any pregnant female, who makes it past federal agents at airports or at the borders.

    WE NEED NO MORE AMNESTIES, MAKE E-VERIFY PERMANENT , FULLY FUND 287 (G) FOR LOCAL POLICE AND RESUME EXPANDED ICE RAIDS. Learn more at NUMBERSUSA , JudicialWatch, and Americanpatrol. Call the Capitol Switchboard at 202-224-3121 and asked for your Senator or Congressman. In addition bombard your State Representatives to enforce state laws. Just look to the State of California, that has been labeled a–SANCTUARY STATE–because its run by a horde of Democrats who are really liberals under their skin, that have pandered to the illegal alien occupation. Now the state is dead–BROKE–with not enough money to pay its bills

  • E-Verify simply does not work. It does not work for American citizens. In 100% of cases, it never even looks at identification or 'verifies' it. It simply compares information with Social Security records (which are not legal ID). If the SSA has your name misspelled, or birthdate mistyped, you get a nonconfirm. And good luck with getting the SSA to fix its errors. SSA has no business being involved.

  • Catherine A. Haala

    We need a biometric ID that everyone in our society carries so that NO ONE can claim discrimination (leaving us open to many major lawsuits) and so that EVERYONE is held accountable as there are many people within our borders at this point who need to be held accountable. A boarder within our boarders so to speak.

    It is very important for the ID to expire according to ones LEGAL status.
    An expiration date that expires according to one’s legal status (citizen, worker, guest, student, legal status etc.) as opposed to a predetermined amount of time. This would ultimately make it possible for us to become a more welcoming society and to expand our guest worker program, student exchange program, etc. It would also allow us to hold in-country people accountable such as sex offenders. For example, the 9-11 terrorists were here legally, but their period for stay in this country had expired. Unfortunately, they were still able to function in our country. With this system it is highly unlikely that they would have been able to carry out the attack. When their time had expired, they would not have been able to continue to function in our country. For example, they would not have been able to take flight lessons, rent cars, rent hotel rooms, buy airline tickets, board a plane or enter into any designated/secured site, space, or location because the would have been expired. It'd be similar to trying to go through an EZ-pass when your card has expired. We have always had to look for the needle in the haystack. With a system like this the haystack disappears as one’s legal status expires exposing the needle. The system could also be effective in making sure that sex offenders, and others who have not met their legal obligations are held accountable.

    Anything short of EVERYONE in the population participating in the system will only result in us looking for a needle in the haystack, if something happens. If everyone had been using a system like the on 9-11, chances are, it would not have occurred. This system will go a long way to getting issues of work visas, student visas, etc., under control, but will also have impact on how we deal with sex offenders, drug dealers, and credit card, check and bank fraud, etc.
    We do not want to see our government putting together a commission or engage in a blame game to figure out why we didn’t take preventive action ahead of time. This is not a time to be politically afraid to do what is right for today’s world. We should ALL be proud to be part of the solution.

    Catherine A. Haala
    Crosscheck Identification System International
    U.S. Patent No.: 6,934,861 B2