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E-Verify Holds Hiring Hope for Firms. Or Does It? Employers Tell Pros and Cons

o Karen M. Kroll
01.12.2011 kl 22:07 | CFOworld (US)

In June, Rep. Lamar Smith, a Texas Republican, introduced the Legal Workforce Act (H.R. 2164). This bill would establish an employment eligibility verification system patterned after the Department of Homeland Security's "E-Verify" approach, and eliminating the current paper-based I-9 system. The bill, with 64 co-sponsors, now is with the Subcommittee on Social Security.


In June, Rep. Lamar Smith, a Texas Republican, introduced the Legal Workforce Act (H.R. 2164). This bill would establish an employment eligibility verification system patterned after the Department of Homeland Security's "E-Verify" approach, and eliminating the current paper-based I-9 system. The bill, with 64 co-sponsors, now is with the Subcommittee on Social Security.

The E-Verify system, created under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, is an Internet-based system operated by DHS in partnership with the Social Security Administration. It enables participating employers to verify electronically the employment authorization of newly hired employees, according to U.S. Citizenship and Immigration Services, known as CIS. The employer enters into the system the worker's name and Social Security number, among other information, and this data is compared to about 455 million Social Security records, along with 80 million DHS records that cover individuals who have lawful permanent residency.

Sharp Split in Opinions

Employers' opinions of E-Verify diverge sharply. "We support an online workable system that allows employers to verify (candidates') identification," says Jennifer Kerber, vice president, federal and homeland security policy with TechAmerica, a trade association for technology companies. "It's just automating a paper process."

Ellen Howlett, chief financial officer with AGM Container Controls Inc., a Tucson-based manufacturer of environmental control hardware for containers, among other products, says her firm has used E-Verify for several years with little difficulty. "It's easy to use," she says. "It hasn't added a lot to the HR process."

Some employers, though, worry that they'll lose their ability to find workers, due either to inaccuracies in the E-Verify database, or the fact that some job candidates are presenting documents that, upon checking through E-Verify, actually wouldn't allow them to work in the U.S.

"I document workers and fill out I-9 forms, and follow the letter of the law," says Phil Glaize, owner of Glaize Orchards in Winchester, Va. "Right now, we're not required to use E-Verify. I'm scared to death that if I have to, I'll lose a crop."

According to the National Agricultural Workers Survey by the Department of Labor released in 2005 (the latest year available), more than three-quarters of farm workers in the U.S. were foreign- born. Just over half lacked authorization to work in the U.S.

Indeed, an October report by the Georgia Fruit and Vegetable Growers Association found the economic impact on seven crops (blueberries, blackberries, onions, peppers, squash, cucumber and watermelon) of that state's passage of an E-Verify mandate to be nearly $400 million.

Glaize says he has struggled to find willing, legal workers, particularly during the harvest season, when even a day's delay can mean crops aren't picked until they're overly ripe and command lower prices. "Growers are forced to choose between using the broken H2-A guest-worker program which is bureaucratic, inefficient and downright unreliable, or hire migrant workers who present documents that appear to be good, but who may or may not be in this country legally," Glaize said in 2010 testimony before the House Judiciary Committee.

The Department of Labor calls the H-2A temporary agricultural program "a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature." In contrast, the H-1B program, better known to many companies, is used in employing foreign workers, such as scientists or engineers, in specialty occupations that require theoretical or technical expertise, according to CIS.

A Heavily Used Service

As of June 2011, more than 15.6 million searches had been completed on E-Verify, according to CIS. Nearly all -- 98.3% of those querying -- were confirmed as work authorized. Of the 1.7% of mismatches, 0.3% were later confirmed as work authorized.

An employee has eight business days to resolve a mismatch from the system, says Sarah Hawk, an immigration attorney with Ogletree Deakins in Atlanta. During that time, the employer can't take any adverse action against him or her. Potential employees who seem most at risk of receiving an incorrect mismatch are those who've changed their names or are naturalized citizens, she adds.

One AGM employee who had been using his middle name as his first name experienced this, Howlett says. However, he was able to clear up the discrepancy within several days. Still, because employers aren't supposed to check E-Verify until they've extended an offer or a hired a candidate, they're "in limbo-land for a couple of days" while the mismatch is addressed, Howlett says.

Taking It National

While some states have passed laws with E-Verify provisions, concerns about making its use mandatory across the U.S. persist. The primary reason? "The feeling that it's not ready for prime time," says Muzaffar Chishti, director of the Migration Policy Institute at New York University School of Law. Currently, about 300,000 employers are using the system, CIS reports. That compares with approximately 2.2 million firms in the U.S. with at least five employees, according to U.S. Census numbers.

Identity theft also is a concern. An applicant may have legitimate documents -- that belong to someone else. "We need to increase the security of 'breeder documents' like drivers licenses and Social Security numbers," says Kerber of TechAmerica.

"The program is not set up to really combat identity theft or fraud," says Jim Wright, a CIS spokesperson. However, the E-Verify system has begun a pilot project with the state of Mississippi, in which it accesses drivers licenses data, although not yet photos, as another check on individuals' eligibility to work in the U.S. (A pilot to access drivers' photos is yet to come, Wright says.)

No Safe Harbor

Another concern: Currently, businesses that use the E-Verify system don't receive any sort of safe harbor against legal action if an employee later is found to have been incorrectly authorized to work, says Kerber.

"Employer participation doesn't relieve him or her from enforcement action, but it does provide 'rebuttal presumption'," Wright says. "This does tell everyone that you did the right thing."

Still, businesses likely would find it easier and less expensive to work with a national E-Verify program than a patchwork of state regulations. "We tend to favor federal preemption," says Kerber. "It's hard to comply with 50 different laws, and costly."

Chishti predicts that use of E-Verify eventually will become mandatory. The requirement probably would start in certain sectors or with larger companies, and spread from there, he says.

Reform Still Needed

Of course, simply mandating E-Verify doesn't eliminate the need for immigration reform, particularly in certain sectors. "I really believe that agriculture needs to be focused on, so that legislation can be passed that allows me to get crops picked in a legal manner," Glaize says.

The Agricultural Labor Market Reform Act of 2011 (H.R. 3017), introduced in September by Rep. Howard Berman (D-Calif.), would "establish an earned legalization program under which current undocumented farm workers in the U.S. who meet stringent requirements are given temporary permission to work in agriculture for three to five years and the opportunity to earn immigration status," according to the nonprofit group Farmworker Justice, which supports the bill. The legislation is with the House Subcommittee on Immigration Policy and Enforcement.

Until some type of legislation is passed, Glaize and others may continue to struggle to fill jobs. A worker shortage this year -- which Glaize surmises might be due to new state laws targeting illegal immigrants, although he can't be sure -- meant that nearly one-fifth of his crop was harvested after its prime. The apples had to go to applesauce, rather than eating, cutting the price by about 75%, he says. "We cannot stay in business growing only processing apples."

Keywords: Government  Business Issues  
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