Ann Cun

In the past year, it seems like E-Verify has been quite a popular topic for national congressional leaders in both the Senate and the House.  A review of introduced bills requiring some form of mandated enrollment in the federal E-Verify program resulted in no fewer than eight separate pieces of legislation, most of which have floundered in various committees.

By far the most well-known (and probably most popular) legislation solely devoted to the topic on E-Verify is the bill introduced by Texas Republican Representative, Lamar Smith.  Like many of the bills introduced in either the House or the Senate, the bill calls for a nationwide requirement for all employers (both public and private) to enroll in E-Verify.  The bill also introduces criminal penalties, a departure from prior immigration laws, for individuals who knowingly utilize a social security number that is not their own in relation to a crime of aggravated identify theft.  If enacted, the bill allows employers of different sizes to enroll in E-Verify in stages.  Larger employers would be required to implement the requirements as soon as six months after the law goes into effect.  Smaller employers would be given a longer grace period in which to comply.

Last month another mandatory E-Verify bill was introduced in the House which would require all employers who are federal contractors and any employer receiving federal funds (grants, loans, and other federal benefits), to enroll in E-Verify.

It may be that in a few months, Congress may vote and pass a nationally mandated E-Verify requirement for all employers.  But the challenge of enforcing such a law is clearly the bigger hurdle to overcome.  In the meantime, it appears statewide, that immigration related laws have waned by at least 20%, according to the latest report from the National Conference of State Legislatures.

What Employers Have to Say About E-Verify?

According to USCIS, E-Verify have more than 350,000 employers enrolled in the program and more than 9.2 million cases have been processed in the system.  In spite of the heated debates about controlling immigration and job creation, the reasons given by some employers why they don’t want to enroll is quite telling in a (slightly dated) government survey. Many didn’t see a benefit in using E-Verify; thought it was too costly or time-consuming to set up; said the transition would be very disruptive to their existing HR system.  The majority of employers actually indicated that they rarely hired new employees.

One of the interesting aspects of the survey documented over 90% of the survey participants supporting an increased use of technology to identify fraudulent documents and to verify identity.  The study recommended that if E-Verify were ever to be nationally mandated, special attention should be given to employers for the burden it would impose on them.

What About Employees?

A recent GAO report on E-Verify indicated that one of the biggest challenges regarding the E-Verify program was the ability for employees to correct an erroneous TNC because the processes are not clearly defined on how an employee can make such corrections.  Senior officials at DHS have admitted that individuals who face an erroneous TNC “face formidable challenges in getting the inaccuracy or inconsistency.”  The average response time in FY2009 was approximately 104 days.

Let’s hope the government has actively implemented transparent processes for employees who have received erroneous TNCs to make necessary and timely corrections.  This is, in fact, the basis of much of the criticism most Congressional bills that mandate E-Verify nationwide for all employers receive. Critics are concerned about validly work-authorized employees (and employers) who are significantly impacted from the process of having to correct TNCs (in addition to other matters).

At the least, an updated accounting of progress made to improve E-Verify accuracy and streamline remediation of inaccurate TNCs would be helpful for many employers and employees considering enrolling regardless of whether a national E-Verify bill ever makes it into law.

What are your thoughts on a mandated E-Verify law for all U.S. employers?  Should it become a reality or be left for the birds?   Take our brief poll on the left sidebar.  Let us know!

Originally published by LawLogix Group Inc Reprinted by permission.

About The Author

Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.