If It’s Fixed, Don’t Break It: Reauthorizing E-Verify

By Janice Kephart on August 26, 2008

I have been using E Verify for over 3 years. It takes away all of the guess work in determining if documents presented are valid or not. Being close to the border you would be surprised at the amount of fake IDs that look real until they are run through the program. For the first time in my 20+ years in HR I am comfortable in knowing that we are hiring only employees who are authorized to work in the United States. - Ginny Priborsky, online comment in response to "E-Verify: Is it about to die?," HR Morning, July 11, 2008

The E-Verify program is well on its way to fixing a 20-year-old problem of determining legal employment eligibility in a manner employers can support. (The quote above is an endorsement from an end-user.)

Arguably E-Verify sits as the most successful programmatic upgrade to infusing integrity into our interior border systems that we have seen in years. Yet in an irony befitting to Washington, E-Verify may not be reauthorized because just one of the 535 members of Congress has decided to put a "hold" on it in order to insist that some pet immigration provisions get a piggyback ride from what should be a slam dunk reauthorization. (Interesting too, the effect of the U.S. Chamber of Commerce on the process, but that's for a future posting.) In fact, both Sen. Specter (R-PA) and Sen. Grassley (R-Iowa) have E-Verify reauthorization bills pending, both with support (and the House has already reauthorized the program). But if Sen. Robert Menendez (D-NJ) doesn't release his hold, or if the hold isn't voted down by 61 senators, E-Verify will disappear on November 30, 2008.

E-Verify quick facts. E-verify is fast, efficient, inexpensive for employers to use, and effective at rooting out fraud. Error rates have come down substantially, and continue to drop, as the Social Security Administration (SSA) and U.S. Citizenship and Immigration Services (USCIS) streamline their matching and referrals. A great help will be when more photos are available with the Photo Screening Tool, further reducing the ability of job applicants to feign legal work status. Most interesting is that the percentage of those not authorized to work when vetted through E-Verify mirrors the percentage of illegal workers in the U.S. workforce, about 5 percent.

Here are some quick helpful facts.

• 94.2 percent of all E-Verify queries instantly verify

• 90 percent of the new hires who receive a tentative nonconfirmation from the SSA query (this represents 5.2 percent of all queries) either choose not to contest it or fail to establish their work authorization status

• Only 0.4 percent of all E-Verify queries are U.S. citizens who have to take action to successfully resolve a tentative nonconfirmation

• 5.1 percent of transactions receive a Social Security nonmatch; only about 1.6 percent are contested.

• 4.7 percent of transactions receive final nonconfirmations; according to a Center for Immigration Studies report from November 2007, approximately 5 percent of the U.S. workforce is illegal

• According to DHS, several hundred instances of document fraud have been detected

• As of May 2008, USCIS is now handling nonconfirmations of naturalized citizens, so that the small percentage of naturalized citizens who have not updated their status with SSA are not held back from confirmation

• The number of employers enrolled in E-Verify after the program became web-based in 2004 was 1,533 in the first half of FY 2005. (See a 2007 Westat report on the program.) As of August 2, 2008, there were 78,000 employers enrolled representing over 315,000 sites and over 5 million queries processed so far this fiscal year-to-date. (Source: DHS email, August 4, 2008) In FY 2007, E-Verify received about 3 million queries, 157,000 were found to be unauthorized to work despite having evaded the I-9 process previously, stopping their illegal employment. (Regulatory Impact Analysis for Employment Eligibility Verification, p. 12.)

• Although 78,000 employers out of the 6 million nationwide may not seem impressive, they account for a large share of the nation’s workforce; according to Stewart Baker, DHS Assistant Secretary of Policy, more than 10 percent of all new hires in the first two months of 2008 were checked by E-Verify.

• Cost to employers, according to the 2007 E-Verify Westat report, is "$100 or less in initial set-up costs for the Web Basic Pilot (E-Verify) and a similar amount annually to operate the system"

• Total costs, including training and time, are estimated to be $419 per year for a company of 10 employees and about $9,000 per year for any company over 500 employees or, "less than 1 percent of expected revenue of these 4 sizes of small entities" according to the Regulatory Impact Analysis, p. 8

• Enrolling in E-Verify and signing the E-Verify Memorandum of Understanding takes about 10 minutes and can be e-signed.

• The photo-screening tool in E-Verify helps stop identity theft and counterfeit identities and currently applies to non-citizens who supply documents with DHS photos, which today only represents about 3.8 percent of all queries. DHS is trying to get U.S. citizen passport photos, visa photos, and state-issued driver’s license photos in the system as well, as these are the most used documents used to verify identity.

• Ten states require use of E-Verify in certain circumstances (AZ, CO, GA, ID, MN, MS, NC, OK, RI, UT), one encourages use (TN), and one limits use (IL). For a more complete description, see the FAQ on E-Verify at the National Conference of State Legislatures site; for a primer on how E-Verify works, see "a href="http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf">Westat's description of the "Web Basic Pilot," p. xvi.

It was broken. From the vantage point of counsel to the Senate Judiciary Subcommittee on Technology and Terrorism in the late 1990s with oversight over the former Immigration and Naturalization Service, I pushed and pleaded for fixes in those years that came in short shrift. Technology wasn't gotten right, and policies were about economics, not enforcement. Perhaps the most important "fix" of that time I was able to get done on behalf of the Committee was the creation of an Immigration National Security Unit to focus on terrorists seeking to enter or stay within the United States. Today, that is the main mission of all our immigration agencies now bundled into the Department of Homeland Security (DHS).

As the immigration counsel on the 9/11 Commission, I (along with my team) took another turn at our broken immigration system, explaining the tears, breaks, and unsewn seams of US border vulnerabilities, showing as best we could how the 9/11 terrorists exploited border and immigration vulnerabilities. The results of that investigation are in my portions of the monograph, 9/11 and Terrorist Travel, and in the border recommendations I crafted with my teammates for consideration by our 9/11 Commissioners. In short, it was broken.

It's being fixed. That was then, when "broken borders" was the catch-phrase of the decade. But things are beginning to change. I was surprised at how this DHS under Secretary Chertoff, despite the initial serious fumbles in handling Hurricane Katrina and instituting unhelpful border policies, turned those instances into lessons learned, putting in place personnel that are getting a job done with border security that has eluded us since before the first World Trade Center bombing in 1993.

Nothing is quite perfect yet – especially on the land borders – but we are well on our way, if only the next administration embraces the good work of DHS. This Secretary has embraced the 9/11 Commission recommendations in a manner consistent with what is truly practical and innovative; embraced key constituencies to defuse issues before they are heavily side-railed; and took on critics and purveyors of misinformation straight-on, derailing most of them. I'm impressed, and that is not easily said from my camp. In short, it is being fixed.

Signs of progress. Our borders are beginning to show that security and facilitation can work in tandem:

• Our ports of entry are becoming more secure with US VISIT freezing identities of visitors at our ports of entry and a passport or biometric equivalent requirement being deployed in a timely and meaningful way.

• Enhanced Driver Licenses are integrating more secure driver licenses as called for under REAL ID with travel facilitation across our land borders for states that choose to sign on.

• Interior enforcement is driving employers and workers towards complying with longstanding immigration law that prohibits the knowing hire of illegal aliens, while more stringent rules about catching – and not so easily releasing – show that immigration laws are being taken more seriously.

• Local law enforcement is reaping the benefit of being able to check immigration status with a conduit to federal immigration enforcement that is making communities safer.

• Beyond our shores, overseas checks on visa applicants are more robust. The Visa Waiver Program (VWP) now requires its participants to deploy security enhancements like carriers providing advance passenger manifests prior to takeoff and the new electronic travel authorization, which will vet visa revocation, lost and stolen passport databases, and terror watchlists as citizens of VWP-participant countries provide their travel plans from overseas rather than after they touch down in the United States.

None of these answers is perfect yet. Some have yet to come to fruition at all (The exit-tracking portion of US VISIT, for example). However, where we are now is a tremendous improvement over where we were before, and immediately after, 9/11. I can't say for certain that such improvements would have stopped 9/11, but certainly they are stopping some terrorist entry now, and that is what we should be most concerned about.

A piece of it fixed with E-Verify. Perhaps the biggest story is that the immigration bureaucracy is beginning to look – in a few nooks and crannies – like good government. Looking back on this administration, one of its best legacies will be that it helped direct policies in homeland security that achieved better border and identity security than we have ever experienced. E-Verify is one of those initiatives.

E-verify isn't new, for sure. The 1986 Immigration Reform and Control Act (IRCA) explicitly prohibited unauthorized persons from working in the United States. IRCA established criminal and civil penalties for employers acting with constructive knowledge that they are hiring unauthorized workers. IRCA also established a paper system to verify eligibility by having employers review documents produced by new hires. But with no biometrics, no ability to authenticate either the new hire's documents or information, or to verify identity, the system was difficult for even good-faith employers to use. Worse, it was even less effective. Meanwhile, the counterfeit document market surged in all varieties of breeder documents used by the program.

In 1996, President Clinton issued an executive order prohibiting federal agencies from contracting with firms that employ unauthorized workers in violation of IRCA. In the same year, the 1996 immigration law, IIRIRA, established three pilot electronic verification programs designed to supplement the paper-based system established under the 1986 law. One of the pilot programs survived, despite significant problems with identity verification as required under IIRIRA and grave concerns about employer liability. That one program, generically dubbed "Basic Pilot" after its statutory section title, was changed to a web-based program in 2004 that began addressing prior issues of verification, nonmatches, system speed, and ease of use. As the Westat report stated, this program is far from static. It is now called E-Verify.

In June 2008 President Bush amended President Clinton's executive order in light of the "reliability, convenience and accuracy of the E-Verify system", directing all employers with federal contracts to enroll in E-Verify. This order not only assures that the federal government is dealing only with employers who abide by federal law, but also provides federal contractors an even playing field and plausible legal presumption in their favor if violations are found amongst their work force. Considering the $439 billion private companies earned on federal contracts in FY 2007; the fact that about 127,000 contractors may have to spend a maximum of up to $9,000 each in time, personnel, and systems to get E-Verify implemented, or an average of .003 percent or less of earnings, on authorizing hires for a projected 3 million new hires requiring vetting through E-Verify; a lot is being fixed at minimal cost to federal contractors. (See Regulatory Impact Analysis, pp. 8-27.) The same can be said for all other employers as well.

A senator's hold on E-Verify. Call me old-fashioned, but when I was a staffer on the Senate Judiciary Committee, I took seriously the notion that bipartisan, effective laws and programs should be submitted for a vote on the floor of the House and Senate free of any stalling measures. If the measure is widely supported on a bipartisan basis, in my view, generally it means it will likely or already is achieving its mission with accountability. It was with this same view our bipartisan staff worked through issues on the 9/11 Commission: if the fact didn't hold muster with all of us on a team, it didn’t go through to the Commissioners; and if a recommendation was not agreed to by us all, it was not placed in a final draft.

Public service – again, this is my view – means working with consensus to achieve results and looking forward enough to make a difference. It also means that when good government sits squarely before you asking for approval, you give it. Remember that Congress and Commissions, despite their differences in mission, spend a lot of our time doing the opposite – calling agencies and laws out as unfit for their work – so when something is right, support is in order. If it is fixed, goodness, don't break it!

Yet as of today, Sen. Menendez continues to have a hold on E-Verify, meaning that 61 Senators have to vote against the hold to override it. If the override does not occur, then E-Verify expires on November 30, 2008.

So while we are waiting, let's put E-Verify down on a table before us and analyze it from all angles. The first question: does it work? It does work. Yet E-Verify seems to not quite catch the light in a way pleasing to some major lobby groups, and these groups have loudly attacked E-Verify in a manner that suggests they simply have a problem with good government, not to mention immigration enforcement itself. They haven't listened to the end users of E-Verify who may even be their constituents, either. A shame for us all. An embarrassment to their constituencies, too.

E-Verify is helping this country. Whether it should be mandatory or not I'm not sure is as relevant. Employers are bound by the law to not hire illegal workers. Further, they have an incentive to join E-Verify to protect themselves from federal action. And the numbers work in E-Verify's favor, with 94.2 percent receiving immediate authorization and the 5 percent that never do reflect the same percentage that are illegally in the workplace anyway. That's pretty robust.

So if it's fixed, why would Sen. Menendez want to break it?


Topics: E-Verify