The recent GAO report, “Federal Agencies Have Taken Steps to Improve E-Verify but Significant Challenges Remain,” paints a fairly optimistic picture of what the executive branch has done to improve E-Verify, the electronic employment verification system. To its credit, DHS has taken many steps to increase the use of E-Verify, improve the E-Verify user interface, and encourage membership in the program. E-Verify is currently used by more than 225,000 employers with 1,300 more signing up each week.
The E-Verify report will serve as a good baseline review for discussion when the House Judiciary Committee convenes an upcoming hearing on the effectiveness of E-Verify. Although the federal agencies responsible for E-Verify should be asked many tough questions, many of the issues identified in the report could actually be resolved by Congressional action.
In particular, the report notes that significant issues must be addressed to make E-Verify valuable for employers and more effective as a screening tool. E-Verify remains vulnerable to identity fraud, and egregious employers and undocumented workers are gaming the system. This is in part because of the way the E-Verify photo tool is structured and the limited documents that are available via the photo tool. It is not surprising to see reports from ICE agents that unscrupulous employers are deliberately evading the photo tool by asking questionable employees to provide documents that do not trigger the photo tool. Agents also found cases where E-Verify is deliberately just not run for certain individuals.
The limitations of the photo tool are underscored by the failure of Congress to comprehensively implement Real ID to provide secure driver’s licenses and identification cards in all states. The absence of strict standards for state issued ID cards continues to provide a significant vulnerability for many threats, particularly with respect to employment fraud. Significantly, however, the GAO report fails to mention Real ID when mentioning that many driver’s licenses do not have adequate security features. In hearings on the report, the GAO should be asked what difference it would make to E-Verify’s effectiveness if Real ID were fully implemented? Renewed Congressional action to implement Real ID could make a substantial difference in the E-Verify program.
Even without full implementation of Real ID, the photo tool could be enhanced with pictures from state driver’s licenses and identification cards. To be clear, DHS has tried for years to obtain the DMV data necessary to provide the photo tool for these documents. Without this critical data, E-Verify will be hard-pressed for years to comprehensively address identity fraud – which is at the heart of illegal employment. Instead of just watching DHS’s negotiations with states, Congress could assist DHS by providing incentives for states to share their DMV data.
The inability of the government to provide concrete solutions to identity fraud leads employers to create their own, makeshift procedures or rely on background checks. The government needs to give guidance on which of these procedures are acceptable and how businesses should navigate identity fraud issues. Unfortunately for businesses, simply relying on E-Verify alone is not a good option, as ICE audits routinely reveal large numbers of individuals who are likely undocumented but who have been run through E-Verify. Companies who have relied on E-Verify still have to answer to agents about how these undocumented workers were hired and at the same time dismiss those individuals, with huge impacts on production, and costing businesses considerable time and expense.
The GAO report also shows that USCIS needs to make significant progress in using the information contained in the E-Verify queries. Although there have been a number of cases investigated by the Office of Special Counsel at the Department of Justice, it is not clear that other agencies are focusing on this data to find egregious employers. Only three cases have been referred to ICE, and all three have been declined. Is ICE unable to find any other patterns or trends in the E-Verify data? What sort of cases are USCIS referring to Arizona law enforcement to show abuse of the E-Verify sanctions law (signing up but not using the system, etc)? This is an area where improvement needs to be made to level the playing field for employers who take E-Verify participation seriously. Congress can make a difference in this area by focusing on the enforcement uses for E-Verify and potential penalties for egregious abuse, as well as requiring USCIS to report how it shares the data that show troublesome trends.
While hearings should appropriately look at what executive branch agencies can do to improve E-Verify, Congress should also examine what steps it can take to make this critical tool more effective and useful for employers and the government.
The writer has developed a web-based tool that assists businesses in fighting identity theft.