To e-verify or not to e-verify, that is the question
At our recent conference of Immigration lawyers in San Francisco last weekend, we heard several presentations about e-verify. I came away from the conference thinking that whether or not to register for e-verify is a Shakespearean quandary.
E-verify is an internet based system operated by the Department of Homeland Security in cooperation with the Social Security Administration that permits participating employers to electronically verify the employment eligibility of their newly hired employees. Once an employer registers with a program, the user completes a tutorial and then may begin using the system. The Department of Homeland Security claims that more than 69,000 employers use e-verify and that over 4 million employment eligibility queries have been run in fiscal year 2008.
It is currently a voluntary program; however, beginning on January 15, 2009, all federal contractors and subcontractors are required to use it. Thus for some employers, participation in the program will be obligatory.
Immigration Customs and Enforcement ("ICE") wants non-governmental employers to use e-verify so they have established a program called IMAGE designed to help employers institute what ICE calls "best practices" into the hiring process. By registering for this program, employers agree to:
- submit to an I-9 audit by ICE;
- verify the Social Security numbers of their employees using another database called Social Security Number Verification Service (SSNVS);
- use e-verify for all new hiring;
- establish an internal training program covering such topics as I-9, fraudulent identity documents, and e-verify procedures;
- have only trained employees completing the I-9 and performing the e-verify query and establish a secondary review process;
- conduct a semiannual I-9 audit by neutral party and establish a self-reporting procedure to inform ICE of violations or deficiencies;
- establish a protocol for responding to no-match letters from the Social Security Administration.
In exchange for an employer's participation in the program, ICE will consider an employer's participation in IMAGE as a mitigating factor should any civil penalties be levied against an employer who has hired persons unauthorized to work.
Participation in IMAGE could be beneficial to an employer. ICE provides all of the training and helps to set up the procedures for the employer. Many employers are concerned about their reputation and bad publicity that can result from an ICE raid at their workplace. It is thus important to them from an image standpoint to do what they can to make sure their hiring practices are in compliance with the law. Indeed on their website, ICE indicates that they will attempt to minimize disruption at the workplace resulting from a company's self disclosure of violations. (I..e, no raids if an employer provides the information.) ICE also claims that they will keep the violations confidential as permitted by regulations and the law. (I.e., they will not broadcast a raid to the media.) It really is not clear though what this means.
Should an employer participate or not? The downside is that the government will have more access to an employer's information than it does now. It also puts the burden of hiring persons unauthorized to work on the employer and lessens the government's burden of having to find them. The upside is that the employer is only doing what it is already required to do in the I-9 process, albeit in a more intense fashion. Ultimately the employer may soon not have a choice. Congress may see e-verify as a quieter way of enforcing the Immigration laws and expand the program to all employers.
