To E-Verify or Not: That is the Question

September 15, 2013

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It used to be that when you hired an employee, you relied on the information they provided with their I9 as proof that they had the right to work in the United States. This proof took the form of various sources of identification issued by the federal government, like a passport, a driver’s license or a social security card. In other words, if they could meet the criteria of the I9 that would be enough for the employer to have “done their part”. In reality what this meant was that you could hire an employee in January who provided you with his or her “proof”. If you were in compliance, you would then retain copies of the W2 and I9 (as well as copies of the identifiication), report this information to your payroll provider and they in turn would report the employee to the State in which the employee was working, to meet that State’s (and this is the case in all 50 states) New Hire Reporting requirement. The chief purpose of the State’s New Hire Reporting requirement was to track down deadbeat parents who have not fulfilled their child support duties, and other individuals whom the state and federal government.

E-VerifyGiven the assumption that the employee in question did not have an outstanding obligation to fulfill from the State or another state (they keep a nationwide database with this information), the employee was allowed to work, and be paid for a significant amount of time. But come the next January, when W2 files are transmitted for the previous year and the IRS and Social Security Administration compare notes, they verify whether or not the SSN provided by that employee matches the employee in question. Over the last 10-20 years however, there has a dramatic increase of instances of what the Social Security Administration calls an “SSN Mismatch” , and now that the department of Immigration and Naturalization has become part of the Department of Homeland Security, things have changed. This meant that the employer, having potentially paid this individual over the course of the year, invested time and effort in training, etc, now has to deal with the termination of what may be a good employee, as well creating turnover in a position that was supposedly stable. It costs time, money effort and hassle for the employer who was in compliance.

There is a new system now in place with the now U.S. Citizenship and Immigration Services, called eVerify, which is similar to the State’s New Hire Reporting but with some important and dramatic differences. It is the child of the IRCA-Immigration Reform and Control Act of 1986, and the IIRIRA-Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and like most things government-mandated, has taken some time to evolve. First, as of now, it is a voluntary for more employers, and is only required by federal agencies but also any company who is engaged in business with the U.S. Government. Every participating employer is required to sign a Memorandum of Understanding that requires the employer to safeguard the information it receives and acknowledge that this information is governed by the Privacy Act and Social Security Act. The employer or their reporting agent (like a payroll company) would submit data upon hire of new employees for verification, or an “instant match” of the employee’s Social Security Number against the Social Security and Department of Homeland Security databases to make sure the employee is authorized to work in the U.S. The mandated employer would be required to do so as soon as a job offer is accepted and no later than three days after the start of employment.

The returned result can be an “Employment Authorized”-when there is a match, or a “Tenative Non-Confirmation”-when the information does not match and then the employee is given the opportunity to contest the result. Whether contested or not, if the final ruling is a “Final Non-Confirmation” then the employer must terminate the individual immediately or notify the DHS that they cotinue to employ the individual.

On paper, this solves the problem of investing in an employee only to find out they are not eligible to work in the U.S. Why not mandate it for every employer, or connect it to the New Hire Reporting system? I suppose that there are a group of employers whose labor pool has a tendency to gravitate to foreign nationals or recent immigrants, but does this not protect them as well? Doesn’t it ensure that jobs do not go to those who are not authorized to work? There is always the question of accuracy, but according to the eVerify website, from July 2008-Sept 2008 there were 96.9% of individuals became work-authorized within 24 hours, while .3% were “Tenative Non-Confirms” who later resolved to “Employment Authorized”, while 2.8% were confirmed mismatches. If these statistics hold tight in a larger sample, then the program is an absolute success.

What do you think? Is the eVerify program so good for the country, and its employers that this system should be fully mandated as a step perhaps to replace or accompany the I9 process? Or is it a violation of our privacy and our civil rights, imposing more requlation and red tape on employers many who are struggling as it is? Let me know.

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