Mandatory E-Verify

E-Verify began as a pilot program as part of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It began in November of 1997 and has been extended multiple times. The electronic verification process was used to strengthen the process of employment verification that was initially used with the I-9 forms. Since 2003, E-Verify has been administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services (DHS/USCIS). While it is mostly a voluntary program, certain federal contractors since 2009 have to commit to use E-Verify going forward.

So what is it? Employers collect information on the employee including name, date of birth, social security number, and immigration or citizenship status. The information is sent electronically and compared to the information to the Social Security Administration (SSA) and possibly to DHS to confirm identity and employment eligibility. If the information matches what is in the SSA’s system, then the employee is eligible to work provided that the electronic image of the worker’s ID “reasonably” matches the worker’s actual ID. If there is not a match, a Tentative Nonconfirmation (TNC) notice is issued. If an employee gets a TNC, the worker has eight federal working days to contact DHS or SSA to figure out the problem. If the worker does not do so, the employee receives a Final Nonconfirmation notice (FNC) and the employer is required by law to fire the employee.

The Congressional Research Service (CRS) found that 8% of employers participate in E-Verify. In FY2012, the number of E-Verify requests were over 21 million according to the Bureau of Labor Statistics, there were 52 million nonfarm hires in 2012. E-Verify currently represents a significant portion of nonfarm hires currently in the United States. The point of E-Verify is to limit the number of unauthorized workers working in the United States. Supporters of it point out that it works by being a deterrence for those applying to jobs that do not have proper authorization and that most people receiving FNC’s are, in fact, not authorized to work. It follows that a massive increase in E-Verify would be a bigger deterrent in unauthorized workers and would take those unauthorized workers out of the workforce.

In the past few years, there has been an increased push for mandatory E-Verify for all jobs and hires whether it is on the federal level or at the state level. If implemented without serious reforms, it would be a massive increase in government bureaucracy and place a significant burden on many workers who may erroneously be prevented from working.

An increase in government bureaucracy

Perhaps the most popular policy agenda item of the Republican Party is the idea that the Federal Government is much too large with too large of bureaucracies able to make decisions that affect too many of our daily lives. Currently, neither DHS nor SSA are capable to be handle such an increase in E-Verify. They would have to greatly expand their offices by hiring more employees and more training. In the American Civil Liberties Union’s (ACLU) report “Prove Yourself to Work: The 10 Big Problems with E-Verify”, they note that AARP has expressed concern about further expanding SSA’s administrative burdens. The AARP is concerned that a further expansion of the role of the SSA in E-Verify would prevent them from being able to provide timely services to beneficiaries. As our population ages and many Baby Boomers are set to retire and increase the claims for Social Security, taking employees away from helping those retirees to help administer E-Verify seems like a poor choice.

Politicians on both sides of the aisle have tried to run on the idea of cutting government spending and stopping waste. The nonpartisan Congressional Budget Office found that legislation expanding to mandatory E-Verify would have a significant impact on federal spending, according to the Congressional Budget Office. To comply with the increased workload and upgraded computer systems, DHS would need to spend $454 million over the next 5 years. SSA would need to spend an additional $161 million over the first 5 years. Over the 10 years, the CBO projected that direct spending would increase by about $9 billion over a 10 year period. Further, they project that a number of unauthorized workers will leave the normal workforce, the revenues for the federal government would decrease by $39 billion over a 10 year period.

One of the things that we need to think about when we think about government policies, if we are to even consider the idea that we are fiscally conscious, is the cost of programs and whether or not it is worth it. For instance, the cost of E-Verify over the course of 10 years is about $50 billion. What can we for the cost of $5 billion/year? And is it worth the cost to run a mandatory program, especially one that would place a significant burden on businesses and a number of individuals?

A significant burden

Not surprising to anyone who has ever had to work with a data set, a small typo, a mistake, or an extra keystroke can cause information not to show up when it is supposed to. The ACLU tells the story of Jessica St. Pierre in their report. St. Pierre was a U.S. citizen who was told there was a problem with her E-Verify. She was fortunate in that she was able to visit the local SSA office. She was told that everything was correct and received a printout to that effect. The E-Verify representative at the SSA office promised that the he would call the employer.  But the issue was still there. St. Pierre contacted several government offices and eventually was told to contact the E-Verify hotline. She was, again, told that the information in the system was correct.  The E-Verify hotline representative promised to call the employer. St. Pierre was unable to correct the issue in the system and was fired from her job for not being authorized to work. The issue? The employer submitted her information with two spaces after her last name.

According to the USCIS, in 2012, 1 in every 400 cases submitted to E-Verify regarding a TNC determination were reversed upon appeal by the worker. The ACLU is correct to note that while it does not seem like that many people but with over 150 million workers in our country, that would be 400,000 people would have been deprived of their ability to work. While employers are not supposed to be able to take adverse action against those who contest their TNC status, some employers end up doing so. For instance, in the Westat study for the USCIS, 17.1% of employers admitted to restricting work assignments until authorization was confirmed, 15.4% reported delaying training until authorization was confirmed, and 2.5% reported reducing pay during the verification process.  In one survey of immigrant workers in Arizona, a third were immediately fired after receiving a TNC violating the rules that were already in effect. Even worse, since the employee has to take the matter into his own hands to contest the TNC, a worker is often at the mercy of the employer to get time off to do so. Since the hotlines are only open from 8:00 AM – 5:00 PM and the local offices are only open during normal business hours, it is fairly difficult for a worker to do so.

Per the ACLU, “The GAO found that from April through June of 2008, the TNC rate for employees who were eventually authorized to work was approximately 20 times higher for foreign-born employees than for U.s. – born employees.” The Migration Policy Institute notes that “erroneous nonconfirmations will disproportionately affect citizens with foreign names, naturalized citizens, and legal immigrants.” So while it will disproportionately affect people in those categories, the GAO predicted that 164,000 citizens per year will receive a TNC for issues related to name changes. The erroneous thought is that it will only impact those who are unauthorized to work under the false premise that if you’ve done nothing wrong, you have nothing to fear. But there will almost certainly be an impact on nearly every American.

The U.S. Chamber of Commerce often complains about the number of rules and regulations that small businesses have to follow that bury the businesses without a way of getting out to create much needed jobs. The National Immigration Law Center points out the potential impacts on small businesses with mandatory E-Verify.  An Arizona small business owner Mike Castillo stated “the program isn’t user-friendly for small business owners.” Arizona is one of the states that requires employers to use E-Verify. Castillo complained about a technical glitch that took several days to fix made it difficult for him to make a part-time hire taking time away from his core business. According to the National Immigration Law Center, only 12% of E-Verify users are small businesses, noting that many farms and small businesses do not have high-speed internet access. A Bloomberg analysis found that the use of E-Verify would have cost small businesses $2.6 billion in 2010. Bloomberg estimates that E-Verify cost small businesses currently in E-Verify $81 million. One small business in Maryland stated that it would cost $27,000 for the company to use E-Verify for one year.

The National Immigration Law Center estimates that between 50 and 75% of the U.S. agricultural labor force is made up of unauthorized workers. The National Immigration Law Center compiled testimony from Rick Roth, a farmer in Florida who said that he could not get legal residents to harvest his crops and a mandatory E-Verify bill would bankrupt farmers. The U.S. Department of Agriculture estimates that for every 1 on-farm job there are about 3.1 upstream and downstream jobs, that support and are created by the growing of agricultural products.