Like it or not, E-Verify could become the law of the land for making sure new employees are legally eligible to work in the United States. When it happens, employers won’t be the only ones scrambling to get ready.
President Donald Trump’s immigration crackdown is shining a light on a service that by some accounts is not ready for prime time. Workforce software vendors that send customers’ data to E-Verify say the service breaks down on a regular basis. It’s also been faulted for producing false positives, inaccurately reporting eligible workers as not being authorized to hold jobs here.
What’s more, rolling E-Verify out nationwide could cost the federal government up to $214 million for the first four years, according to a 2016 report published by the Department of Homeland Security’s U.S. Citizenship and Immigration Services division, the agency that oversees the service.
While some cloud-based platforms for background checks and onboarding already handle E-Verify requests, those that don’t could take an unspecified amount of time to get it up and running.
Regardless of problems, it’s not a question of if but when all U.S. employers will have to use it, according to Montserrat Miller, a partner with Arnall Golden Gregory LLP in Washington, D.C., who advises employers on E-Verify compliance and investigations. Much of that has to do with Trump’s desire to put more Americans to work. “If you make E-Verify mandatory, it’ll weed people out” who aren’t legally eligible to work here, and presumably that will move them to leave and open up opportunities for people who are, Miller said.
Building a Digital Wall
E-Verify has been a political hot potato since being introduced in the mid-1990s as a pilot project for confirming new hires’ employment eligibility and immigration status. When a U.S. employer hires a new worker, they’re required fill out and save an I-9 form listing the person’s identity, citizenship status and work eligibility. E-Verify matches the data against Department of Homeland Security and Social Security Administration databases and confirms it or flags it for non-compliance and further review.
Through the years, disagreements between lawmakers, employer lobbyists and citizens’ rights groups over E-Verify’s value and effectiveness have stopped it from becoming more widespread. Today, federal contractors and subcontractors are the only employers required to use it. In the absence of a national plan, 22 states have adopted E-Verify for at least some public- and private-sector employers. An estimated 700,000 private-sector employers use it, with USCIS maintaining a searchable database of those that do.
E-Verify’s supporters say it could act as a digital wall akin to the physical structure Trump has promised to keep undocumented immigrants out of the country, particularly from the southern boarder along Mexico. A leaked copy of a proposed White House executive order to protect U.S. jobs by tightening up foreign worker visas directs Homeland Security to “identify ways to expand the use of E-Verify.” That’s in keeping with Trump’s campaign immigration reform platform, which supported rolling out the program nationwide.
The Republican-led Congress is also acting. Earlier this year, Sen. Chuck Grassley (R-Iowa), re-introduced a bill rolling out E-Verify nationwide. Because the Grassley bill requires the service to be implemented within a year, Miller believes an updated version of a similar House bill introduced in 2015 will receive more attention because it allows for a longer, two-year phase-in period. The earlier House bill expanded E-Verify to cover existing employees, and allowed companies to use it to prescreen job applicants.
Employer groups such as the Society for Human Resource Management, or SHRM, have publicly endorsed reforms such as E-Verify that would “pre-empt the patchwork of state laws with one reliable, accurate and easily accessible federal verification system.”
Existing Service is Underused, Unenforced
Detractors, however, claim E-Verify is too buggy to be depended on. According to a 2016 Congressional Research Service report, the service sometimes flags workers as undocumented because of data entry errors or because they didn’t update records after a name or naturalization status change. E-Verify has also produced false positives that improperly flag workers as being ineligible.
Opponents point to lack of implementation and enforcement in states that have passed E-Verify laws that have made it less effective than it was meant to be. A 2015 study by libertarian think tank Cato Institute found employers in states such as Arizona, Alabama, Mississippi and South Carolina that require E-Verify for all new hires widely ignored the rule. From 2009 to 2013, only 54.8 percent of new hires in Arizona were run through E-Verify, according to the report. In the two full fiscal years after Mississippi mandated the program, only 46.8 percent of new hires were in compliance.
Critics claim making E-Verify mandatory nationwide would add to the dearth of migrant labor that agriculture, construction, hospital and home health care industries depend on. For example, in the 12 months after E-Verify took effect in Georgia in 2011, the state’s farm producers workforce dropped by as much as 50 percent.
If E-Verify kept undocumented workers out of the country, it could have unintended harmful consequences for the economy. According to a November 2016 report from the National Bureau of economic Research, unauthorized workers comprise approximately 3 percent of the U.S. private-sector GDP annually, amounting to about $5 billion over a 10-year period.
People Management Platforms
Chris Dyer, founder and chief executive of PeopleG2, a background check provider that handles E-Verify for clients, said employers of low-wage workers could conceivably respond by going back to paying people cash under the table, which would result in lower tax and Social Security revenues. “The choices become: Lose your business or farm, or pay people under the table, which means that causes a lot of issues,” Dyer said. “It takes us back to some really problematic disputes between bosses and labor. And you’re removing all the taxes that would otherwise be collected.”
Dyer also worries the unplanned service outages that dog the E-Verify system on a regular basis will only get worse with more users. “You have an infrastructure problem. The system itself couldn’t handle it,” Dyer said.
A USCIS spokesperson acknowledged E-Verify has had several recent outages. E-Verify runs on a larger government software platform called the Verification Information System (VIS), according to USCIS spokesperson Steve Blando. When VIS is affected by other system outages or spikes in volume, it can “cause lag in connected systems” such as E-Verify, Blando said. When such outages happen, USCIS notifies employers and third-party software providers. When the E-Verify website is down, users see a notice on the site.
According to Blando, VIS is being updated, and over “the next couple of years” improvements are expected to minimize reliance on “external data sources, infrastructure and connections that rely on systems outside of our control and have been the main cause of outages.”
Expanding E-Verify’s technology platform nationwide could take from $95 million to $214 million, according to a USCIS report commissioned by the Obama administration and published in July 2016. According to Miller, Trump’s pledge to beef up Immigrations and Customs Enforcement agents and support personnel could include funds USCIS would need to expand E-Verify. But any spending would have to compete with what Trump’s also pledged to pay for a border wall, not to mention a substantial hike in defense spending.
Like PeopleG2, other people management technology providers offer E-Verify as part of cloud-based background checking, onboarding or other people management software, including ADP, Tracker and I-9 Advantage.
Others human resources services vendors don’t offer the service. BambooHR, a cloud-based core HR management platform, is one of them. A spokesperson said adding the service would be “quick” but wouldn’t elaborate.
Michelle Rafter is a business journalist in Portland, Oregon, reporting on workforce and tech for Talent Economy and other publications. If you have a comment or a column idea for her, email firstname.lastname@example.org.
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