Mandatory E-Verify Likely, but There Are Bugs to Work Out

By Allen Smith, J.D.
Mar 28, 2017 - SHRM

Employers should become familiar with E-Verify because it's likely to become mandatory, but the electronic verification program, currently a pilot program, still has some bugs that need to be worked out, immigration attorneys say.

While E-Verify has been voluntary for most employers since it was put into place in 1996, it has become mandatory for federal contractors, certain state contractors and employers that want to take advantage of science, technology, engineering and mathematics (STEM) optional practical training when they are hiring foreign graduates of U.S. universities. But Lynn Shotwell, executive director of the Council for Global Immigration (CFGI), which is affiliated with the Society for Human Resource Management (SHRM), said that well under 10 percent of employers are currently enrolled in the system.

In President Trump's 2018 budget, he proposed that $15 million of the Department of Homeland Security budget be used to begin implementation of mandatory E-Verify. But only Congress can make E-Verify mandatory.

Still, E-Verify will likely become mandatory "in the near future," she predicted.

"The question that remains is how quickly it can be rolled out," she said. And, she asked, "Will they try to phase it in over a three-year period, five-year period or a one-year period? We don't know yet."

Problems with, and Solutions for, E-Verify

SHRM and CFGI support congressional reforms that would pre-empt the patchwork of state laws with one reliable, accurate and easily accessible federal employment verification system, noted Chatrane Birbal, SHRM senior advisor, government relations. Nine states—Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Utah—require E-Verify for all or most employers, with some carve-outs for small businesses, according to the National Conference of State Legislatures (NCSL). Eleven states—Colorado, Florida, Idaho, Indiana, Michigan, Missouri, Nebraska, Oklahoma, Texas, Virginia and West Virginia—require E-Verify for most public employers, NCSL reports. Minnesota and Pennsylvania require E-Verify for some public contractors.

SHRM favors an integrated, entirely electronic verification system that eliminates the use of the paper I-9 form, she added. Currently, E-Verify users have to also complete the I-9 form, so E-Verify is a second step requiring additional administrative time for each new hire. "Eliminating Form I-9 for employers who use E-Verify might reduce this burden, but it would require a statutory change," said Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla.

Birbal added that E-Verify should use state-of-the-art technology to accurately authenticate a job applicant's identity, such as knowledge-based authentication or other tools, to protect against identity theft.

"The challenge that we have with E-Verify is that it's still vulnerable to identity theft and identity fraud," Shotwell said. E-Verify does a good job of identifying whether information typed in—such as name, date of birth and Social Security number—is in its system and belongs to someone who is authorized to work, she said. What it can't do is give employers certainty that the people standing before HR are who they say they are.

CFGI and SHRM have been advocating for a voluntary identity authentication system that runs alongside E-Verify, Shotwell noted. There might, for example, be verification centers that would be responsible for asking personally identifiable questions, such as which one of these streets have you lived on or what was the make and model of your first car. "And then perhaps when the identity is verified, it would be captured with a biometric," she said but added, "All the details still have to be worked out."

Birbal said another way E-Verify could be improved would be to ensure a safe harbor from liability for good-faith program users.

There remain unresolved issues relating to E-Verify that the U.S. Citizenship and Immigration Services could clarify through guidance, Borovska said. "It might be helpful for employers to receive more guidance on the specific steps they need to take—or not take—to avoid discrimination, while at the same time ensuring that they would not be liable for employing unauthorized workers," she noted.

Kevin Lashus, an attorney with Fisher Broyles in Austin, Texas, said the entire E-Verify process should be shortened. "It's a waste of time for 'the next page to load' in the application," he said.

And once an employee is "work authorized," there should be an automatic closure of the case, he added. "An employer should not be required to identify that the person they just entered into E-Verify continues to be employed and also be compelled to close the case. It should close automatically."