E-Verify Basics and New Developments
Authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
E-Verify (formerly the Basic Pilot/Employment Eligibility Program) is an online system whereby employers
can submit information from employees’ I-9 forms for verification. USCIS oversees this program,
which is a partnership between DHS and the Social Security Administration (SSA).
The E-Verify program checks information from I-9 forms against the SSA and DHS
databases, kicking back any employee whose data does not match up. On Sept. 17, 2007, USCIS launched a
photo screening program that allows employers to check the photos on Employment Authorization Documents
(EADs) or Permanent Resident Cards (green cards) against images in the USCIS database. USCIS also
recently added the ability to check passport data.
Currently, over 113,000 employers are enrolled in the program, with estimates that approximately 1,000
new employers sign up each week. This, however, is less than 2% of the 7.4 million employers in the U.S.
Of these, only half actively use the E-Verify program. Nevertheless, as of February 2009, more than
3,000,000 queries had been run since the start of the fiscal year. There were 6.6 million queries in
2008 and 3.27 million in 2007.
E-Verify program - Strengths
Proponents of the E-Verify program argue that the program is free, quick, and easy.
They also note the system has become increasingly accurate over the years of its use, with over 96%
of employees automatically verified. Some point out the deterrent effect of E-Verify, noting
that undocumented workers are less likely to apply for jobs where the program is used.
The E-Verify program also offers some additional benefits. Most notably, students
in F-1 nonimmigrant status enrolled full-time for a full year in an institution of higher learning
certified by the Student and Exchange Visitor Program (SEVP) are eligible for twelve months of
Optional Practical Training (OPT). If completing a science, technology, engineering, or mathematics
degree and accepting employment with an E-Verify enrolled employer, OPT F-1 students will be eligible
for a 17-month OPT extension. This will give students with pending or approved H-1B or other change of
status petitions relief from a gap in employment authorization.
E-Verify program - Weaknesses
Opponents of the E-Verify program point to evidence of hundreds of thousands of
incorrect mismatches and the harm they cause. In response to assertions of a 96.1% immediate
verification rate, they point out that fully 10% of foreign-born citizens receive mismatches
(Tentative Non-Conformations, “TNCs”). Critics also question the validity of the
verification rate statistics released by USCIS. For instance, Intel Corporation reported that in 2008
nearly 13% of its workers were flagged with TNCs – and every single one of them was eventually
cleared as work-authorized.
In September of 2007, a DHS-commissioned report on E-Verify found the program
insufficient to meet the accurate verification requirement imposed by IIRIRA. Both the SSA and the
Government Accountability Office (GAO) completed evaluations that revealed errors in the E-Verify system.
In December 2006, the SSA determined approximately 17.8 million records needed updating. The same
report noted that 7% of the records reviewed were misclassified. Other SSA estimates conclude that if
E-Verify were to become mandatory immediately, 3.6 million authorized workers per
year could be mistakenly flagged for TNCs.
Critics also cite financial and economic concerns about the E-Verify program. Currently,
many undocumented workers pay money into Social Security on fake documentation. The result is literally
billions of extra dollars paid into Social Security on which its owners never capitalize. The
Congressional Budget Office estimates that losing this income would decrease Social Security revenue by
over $22 billion over ten years. Implementation and maintenance of a mandatory program would cost the
SSA over $1 billion per year. This brings the total potential reduction in the SSA budget to approximate
$32 billion over ten years.
E-Verify program - New Developments
USCIS recently implemented a Photo Screening Tool to help employers detect forged or faked
(particularly photo-switched) immigration documents.
In February 2009, USCIS incorporated passport data into E-Verify. The goal of this program
is to reduce the number of TNCs by checking non-conforming individuals against State Department records prior
to issuing a TNC.
On April 3, 2009 a new rule went into effect restricting the documents acceptable for I-9 verification.
- All documents must be unexpired
- Forms I-688, I-688A, and I-688B will no longer be accepted as List A identity and employment
authorization documentation.
- Foreign passports with machine-readable immigrant visas will be accepted if they bear a
temporary I-551 printed notation or temporary I-551 stamp
- Passports from the Federated States of Micronesia and the Republic of the Marshall Islands will be
accepted if paired with Forms I-94 or I-94A.
Executive Order 12989 will go into effect on May 21, 2009. This will require federal contractors and
subcontractors to use the E-Verify system.
Our Employment Based team specializes in performing audits of corporate I-9 files. Contact us for a
consultation.
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