Time to review your internal I-9 protocols

Gretel Ness

CIR bill strengthens prohibition and expands coverage

The CIR bill now moving to the House continues and strengthens the existing prohibitions against hiring an undocumented foreign worker and expands these prohibitions beyond employers to persons who recruit or refer these kinds of workers. The Bill also establishes a schedule (a period of five years) for eventually bringing every U.S. employer into the government’s electronic employment verification system called E-Verify and allocates $750 million for its expansion and implementation.

E-Verify is an Internet-based system that compares information from the Form I-9, Certificate of Employment Eligibility, completed by the employer and the employee, to government records to confirm that an employee is authorized to work in the United States. It is run by Homeland Security’s U.S. Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA).

Businesses that enroll in E-Verify submit each employee’s eligibility information found on the I-9 form (which includes, but is not limited to, Social Security number, name, date of birth, citizenship status and alien number) over the Internet. SSA and USCIS then check the data against their records. If the information matches the government records, the employer receives instant proof of authorization. If there is a mismatch, the employer first has the opportunity to check that the information was entered correctly, and then receives a Tentative Nonconfirmation, or TNC, which indicates that the worker has the right to contest the finding.

Handling the increased 
business volume

At present, a handful of states like Arizona, Georgia, Mississippi, South Carolina and Utah, have made E-Verify mandatory for businesses. Elsewhere, it is still a voluntary program and only around six percent of employers in the U.S. use E-verify.

According to the Homeland Security website, as of 2012, more than 404,295 employers now use E-Verify and over 1,400 companies enroll in the program every week. Official figures provided by the government also indicate that out of the more than 20.2 million workers ran through E-Verify in 2012, 1.35 percent or 273,675 workers received initial TNC responses. Of this figure, 0.26 percent or 52,520 turned out to be legally authorized to work and contested. 1.09 percent or 221,155 were found not authorized to legally work in the U.S.

With these figures, government officials argue that E-Verify is clearly working. However, given that the present enrollment only represents less than six percent of the current number of employers in the U.S., should the proposed immigration reform bill become law, E-Verify would have to be able to handle every single one of the U.S.’ 7.3 million employers and more than 156 million workers. A 0.26 percent error rate would still represent a best case scenario where over 405,000 people will be wrongfully tagged and forced to prove their right to legally work in the U.S.

Two recently added improvements to the system have been lauded by the government as further reducing the claimed negligible error rate of the system: (1) A photo identification matching tool that allows employers to match a photo in the E-Verify system with a document presented by the new employee; and (2) a self-check online tool that allows the public to check their information against the system before starting a job search.

To get ahead of the game, employers may want to start reviewing their internal I-9 protocols and employment verification systems hopefully already in place, and consider the pros and cons of joining E-Verify now. Financial, manpower and privacy concerns are just a few of the important considerations that must be taken into account by every employer, large or small.

Gretel Ness is an immigration attorney at Parker Butte & Lane. She focuses her practice on employment immigration, family immigration, and citizenship issues. She can be reached at gmn@pbl.net

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