Dismantle E-Verify

By Scott Forsyth Dolan Media Newswires ROCHESTER, NY--If you own a business, you probably know about E-Verify. It is the Internet-based program, administered by the U.S. Citizenship and Immigration Services, that allows an employer to verify the residency status of a prospective employee. In 1996 Congress made it "unlawful for a person or other entity to hire for employment in the United States an alien knowing the alien is an unauthorized alien," 8 U.S.C. §1324a(a)(1)(A). Regulations require a prospective employee and his employer to fill out Form I-9, Employment Eligibility Verification. In addition, the employee must provide some form of identification. If the paperwork "reasonably appears on its face to be genuine," the employer may proceed with the hire. In 1996 Congress also created the E-Verify program. E-Verify is a big database, fed by information from the Social Security Administration and other federal agencies. Drivers' license information is in the process of being added. When a person applies for a job or is provisionally hired, the employer may go to the website of Citizenship and Immigration Services and compare the information on the I-9 with the government database. This is an additional step not required by the 1996 law. If the information matches, which happened 99.2 percent of the time in 2010, the employer is presumed to comply with the law. This success has prompted several congressmen to propose legislation that would mandate all employers to use E-Verify. The goal is to "reduce the jobs magnet that encourages illegal immigration" and make available "more job opportunities to unemployed Americans." Expanding E-Verify is a bad idea. The likely benefits are too small and the detriments too great to justify inserting the federal government into every hiring decision. For starters, there is the problem of errors. If the information on an I-9 does not match the database and the employee contends that the I-9 is accurate, the employee must promptly call or visit the agency providing the incorrect information to the database and persuade it to input the correct information. If the employee does not act soon enough or the agency stands by its information, the employer is on notice that the employee may be an unauthorized alien. Not wanting to be sanctioned, the employer will rescind its job offer or terminate the recent hire. In 2010 0.3 percent of the E-Verify inquiries were erroneous mismatches that the employee could not resolve on time. Our total workforce is 154 million persons. If the status of all was verified, 770,000 would lose their jobs, through no fault of their own. Is this the way to create "more job opportunities" for Americans? Just as disconcerting is the likely misuse of the database. It contains an enormous amount of personal information, including Social Security numbers, photos, phone numbers, email addresses, employer names, fingerprints and travel itineraries -- a bonanza for hackers. If the CIA cannot protect its database, can we expect the Department of Homeland Security, a much bigger and more diffuse agency, to do so? Hackers aside, there is always the risk that unauthorized officials and government contractors will access the database inadvertently and cause the disclosure of information. Last but not least is the prospect that the E-Verify program could easily expand to host other uses for law enforcement and the intelligence community. This is government creep that should scare all of us. E-Verify has been the subject of litigation. Several states require businesses holding state licenses to use E-Verify as part of a broader scheme to reduce the employment of unauthorized aliens. Getting incorporated, for example, is an act of licensing and brings a business within the scope of the laws. The states cannot impose civil or criminal sanctions on employers who do hire unauthorized aliens. Only the federal government can do that. But the states can revoke the license of the employer, imposing the "business death penalty." The Chamber of Commerce challenged Arizona's version of the law. Various immigrant and civil rights groups, such as the ACLU, supported the Chamber. They argued that the 1996 federal law creating E-Verify implicitly denied to the states the right to make participation mandatory. To allow otherwise would overload the E-Verify system and defeat its purpose. In May, the U.S. Supreme Court upheld Arizona's law. The court did not see any inconsistency between the two laws. Not using E-Verify has the same limited consequence -- the loss of the presumption of compliance. The death penalty is not triggered automatically. The federal government touts the program as capable of handling many more inquiries, Chamber of Commerce of United States of America v. Whiting, 563 U.S. __(2011). Our immigration policy needs to be reformed. Dismantling E-Verify should be part of the effort. Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Entire contents copyrighted © 2011 by Dolan Media Company. Published: Mon, Oct 10, 2011