Public Comment on FAR Case 2007-013, Employment Eligibility Verification (Proposed Rule)

By Jessica M. Vaughan and Jon Feere on June 18, 2008

Submitted to Regulations.gov on June 18, 2008

If enacted, the proposal by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council to amend the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the E-Verify system will benefit the nation’s economy and security and will reduce illegal hiring practices.

This is an essential first step in requiring all businesses to adhere to basic employment and immigration laws. Starting with federal contractors is a way of phasing in the system and institutionalizing E-Verify as a best practice in more and more sectors of the economy. E-Verify increases economic stability as businesses using the system are not burdened by a deportable workforce nor susceptible to ICE worksite enforcement measures, which have been stepped up in recent years, and which are likely to be sustained for years to come.

E-Verify is efficient, accurate, and effective. According to a recent independent evaluation of the E-Verify system, out of all new hires, 94 percent are quickly confirmed as eligible to work. Most of the remaining six percent are estimated to be illegal hires, who do not contest the results. Of those who are legal workers, nearly all (99.6 percent) are successfully and swiftly verified.

While the Social Security databases used by E-Verify have been found to have some discrepancies, most of these do not affect the confirmation of legal workers. According to a recent audit, many of the records with discrepancies belong to individuals who are not in the workforce, such as elderly, children, or deceased individuals, and thus would not be relevant to E-Verify. The auditors praised the Social Security Administration for the accuracy of the database.

Employers are making use of E-Verify to a greater extent than ever before. In the first two months of 2008 over one million new hires were checked through E-Verify. At least 10 percent of all new hires nationwide are verified through the program. Over one thousand new employers are signing up every week.

Many state governments have already enacted legislation making E-Verify mandatory. At least 13 states plus several towns and counties now or will soon require or encourage the use of E-Verify for some or all employers, including Arizona, Arkansas, Colorado, Georgia, Idaho, Minnesota, Mississippi, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Utah, Missouri, and South Carolina. Other jurisdictions are currently considering mandating E-Verify as well.

E-Verify reduces discrimination against immigrant workers. According to the latest evaluation, more employers report that they are more likely to hire immigrant workers using E-Verify, because they feel confident that the new hires are authorized to work and are not using false documents. The system also alleviates employer concerns about discrimination lawsuits. Employers using the system are required to check all new hires against the E-Verify database and employment eligibility is determined by the federal government; employers are not forced to make judgments about a worker’s status – they rely on the federal government’s authorization.

Recommendations

1. With so many jurisdictions enacting or considering enacting mandatory use of E-Verify for some or all employers, it is essential that USCIS monitor usage to ensure that employers are using the system in good faith and adhering to the rules. The Verification Office should conduct periodic on-site, in-person audits of employer hiring practices and records, both on a random basis and targeted at certain employers based on verification patterns or actions.

2. USCIS should make more information about E-Verify program use available on the website. This information should include a database or list of E-Verify users, or regular reports, including the type of employer, location, number of employees and sites. It should also include numbers of tentative and final non-confirmations, findings contested, and so on. This information would assist state and local policymakers in administering programs at their level.

3. The Verification Office should design a process whereby authorized U.S. workers can check the information in their Social Security or DHS record, so that they can update their information before applying for a job. This self-check process could be done through a trusted third party or contractor, and would prevent many tentative non-confirmations from occurring in the first place. It would also help mitigate the problem of employers who misuse E-Verify to pre-screen employees and do not inform employees of a tentative non-confirmation. Allowing workers to confirm themselves before hire would prevent them from unwittingly being screened out of jobs due to a non-confirmation that would be corrected if they were informed of it.

4. Many employers have a legitimate business need to pre-screen employees through E-Verify. These include companies in defense, technology, law enforcement or other security-sensitive sectors, and also temporary staffing companies who must provide new hires with training and work even if their confirmation is delayed. USCIS should launch a pilot program, perhaps using employers from the federal contractors sector, to test a pre-screening process that could be authorized for certain employers. Those employers who have long and exemplary experience using E-Verify, or who can demonstrate a business need would be good candidates for such a pilot.

5. The biggest weakness in the E-Verify system is that it is currently voluntary for most businesses. For the system to be fully effective, and to be fair to the vast majority of American businesses which operate within the law, it eventually must be required of all businesses.

6. The program is up for re-authorization in November, 2008. According to DHS officials, E-Verify reauthorization is a top legislative priority for DHS this year. The program enjoys broad bi-partisan support, and reauthorizing legislation has been introduced by Senator Chuck Grassley (R-Iowa) and Congressman Ken Calvert (R-Calif.).