Security Debrief

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.