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Greg Siskind on Immigration Law and Policy

WSJ PANS E-VERIFY

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The Wall Street Journal has an excellent editorial today on E-Verify (thanks USC for the link). Last week DHS defended E-Verify claiming that getting problems resolved was no big deal. Keep in mind that most of the data problems are with the Social Security Administration. The WSJ piece should give you pause if you're an American worker:

Keep in mind that the SSA isn't exactly a model of speed and
efficiency. By its own admission 50% of calls to branch offices and 25%
to the 1-800 number aren't even answered. And what of calls that do get
through? It currently takes, on average, more than 500 days to get a
decision on a disability appeal.

I have a simple solution to protect American workers - allow workers to continue working until SSA and DHS reach a determination. Right now, employers are required to terminate workers if a problem is not resolved within 8 days. The no-match rule that has been held up in the courts, gives just 90 days to resolve a problem. Why should American workers and employers pay such an extreme price when US agencies can't do their job in a timely manner. And why should we believe the government can handle a massive increase in its workload when it can't handle the load it has now?

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Comments

  1. EB3's Avatar
    The WSJ says the number of E-Verify users is "about 50,000." Is that number right, Siskind?

    And precisely what percentage of E-Verify tentative non-confirmations (TNC) are not resolved within 8 days? Note: we're not talking about decisions on disability appeals, but TNC resolutions.

    Please show me where it says in the statute that employers "are required to terminate workers if a problem is not resolved within 8 days." I would emphasize your insistence on the point that employers are "required" to terminate employees who have submitted their case to SSA or DHS within 8 days of notice but still have pending TNCs at the 8-day mark. Indeed, where does it say that an employer is "required" to terminate an employee with a _final_ non-confirmation?

    Where does it say in the no-match reg that employers are "required" to terminate an employee who isn't able to resolve the SSA mismatch within 90 days?

    I think you need to go back and study the law and regs a little more carefully.
  2. Immigrant's Avatar
    Actually my cousin did get a hit on his E-Verify. He just started interning with a fortune 500 company in AZ, night before getting his non confirmation from E-Verify, he got robbed and lost all his documents.
    A day after getting his non confirmation letter from his employer he called USCIS and come one picked up the phone in 2 rings and the sweet lady asked him his personal Information like SSN and SEVIS number on him I20 and in under 2 minutes he was all set. Now dont get me wrong I am not anti Immigrant (I am an Immigrant myself) I am pro- legalization but E verify might not be so bad as they say it is... may be we should give it a chance.
  3. Greg Siskind's Avatar
    EB3 - Your questions indicate that you are not familiar with the rules of the program. Please read the standard Memorandum of Understanding and then ask your questions.
  4. Greg Siskind's Avatar
    As for data on the program, read DHS' own report from a few months ago at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89abf90517e15110VgnVCM1000004718190aRCRD&vgnextchannel=a16988e60a405110VgnVCM1000004718190aRCRD
  5. EB3's Avatar
    I've read the MOU and I'm still really confused.

    So let me ask you again, is the "about 50,000" number cited in the WSJ article correct? Do you support that number in the WSJ article? I'd always heard the number of E-Verfy users was much lower than 50,000. Am I right?

    Second, precisely what percentage of E-Verify tentative non-confirmations (TNC) are not resolved within 8 days? The Westat report is _way_ outdated. Please give me the latest stats _you_ have.

    Third, where does it say in the statute, or in the MOU or anywhere else, that an employer is "required" to terminate an employee if the TNC is not resolved within 8 days? Where does it say an employer is "required" to terminate an employee with a _final_ nonconfirmation? You know, I've just looked all over and I can't find it.

    Like I said, I think you need to spend a little more time reviewing the statute, the MOU, and the no-match reg too while you're at it. You might want to reach out to an immigration attorney in the AILA Mentor Program.
  6. USC's Avatar
    "You might want to reach out to an immigration attorney in the AILA Mentor Program."

    That's insulting and uncalled for.

    "Like I said, I think you need to spend a little more time reviewing the statute, the MOU, and the no-match reg too while you're at it."

    No, no. That is what YOU need to do. Here are excerpts from the MOU that Greg linked and from the statute:

    From Article II C(6) of the MOU:

    "(4) the Employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized alien in violation of section 274A(a)(1)(A) if the Employer continues to employ any employee after receiving a final nonconfirmation; and"

    and from Article III A(2) of the MOU:

    "2. If the employee contests an SSA tentative nonconfirmation, the Employer will provide the employee with a referral letter and instruct the employee to visit an SSA office to resolve the discrepancy within 8 Federal Government work days. The Employer will make a second inquiry to the SSA database using the Basic Pilot procedures on the date that is 10 Federal Government work days after the date of the referral in order to obtain confirmation, or final nonconfirmation."

    The penalty for knowingly employing an illegal is laid out in the statute:

    http://www.law.cornell.edu/uscode/search/display.html?terms=1324a&url=/uscode/html/uscode08/usc_sec_08_00001324---a000-.html

    In addition to civil penalties there are criminal penalties for repeat violations:

    "(1) Criminal penalty

    Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels."

    So, I guess you might be right. Employers will continue to employ workers after receiving a final nonconfirmation. 6 Months in Federal prison should be a piece of cake!



  7. USC's Avatar
    "Actually my cousin did get a hit on his E-Verify. He just started interning with a fortune 500 company in AZ, night before getting his non confirmation from E-Verify, he got robbed and lost all his documents. A day after getting his non confirmation letter from his employer he called USCIS and come one picked up the phone in 2 rings and the sweet lady asked him his personal Information like SSN and SEVIS number on him I20 and in under 2 minutes he was all set. Now dont get me wrong I am not anti Immigrant (I am an Immigrant myself) I am pro- legalization but E verify might not be so bad as they say it is... may be we should give it a chance."

    Your anecdote is bs. Hint: the USCIS are not the people to call and you can't resolve this over the phone. As the cited MOU makes clear an person visit to the SSA is necessary. Here is the cite again:

    "the Employer will provide the employee with a referral letter and instruct the employee to visit an SSA office to resolve the discrepancy within 8 Federal Government work days."
  8. hmm's Avatar
    USC, should not you be more careful before saying "Your anecdote is bs". To quote from
    http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f55d1443719b9110VgnVCM1000004718190aRCRD&vgnextchannel=55b2aca797e63110VgnVCM1000004718190aRCRD

    "Starting today, the E-Verify system will include naturalization data, which will help instantly confirm the citizenship status of naturalized U.S. citizens hired by E-Verify employers. Naturalized citizens who have not yet updated their records with the Social Security Administration (SSA) are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. Additionally, a naturalized citizen who receives a citizenship mismatch with SSA can call USCIS directly to resolve the issue (in addition to the option of resolving the mismatch in person at any SSA field office.)"

    Pay attention to the last sentence. I of course have no idea whether USCIS implemented what they promised on May 5th.
  9. Greg Siskind's Avatar
    I think USC did a great job in responding. I will say that I've just completed writing a book on employer compliance that is coming out in the early fall and I have been immersed in this narrow topic of immigration law for much of the past year while completing the 400 page manuscript. I have posted excerpts from the book here over the past few months (such as the E-Verify FAQ I posted after the OPT rule was released last month).

    A piece of advice EB3 - If you are going to challenge me, pick things which really are debatable. The 8 day rule is not one that is a source of confusion. The data on just how bad the false positive situation is is another story and it's why I have been posting articles. Only a few days ago I posted a GAO report that addresses some of these issues so if the 8 month old Westat report is too dated for you (and its a little silly to say USCIS has magically solved all of the problems in the last 8 months when the electronic verification system has been around for over a decade). I'd also say that if the problems were over, DHS would not have felt compelled to announce new measures last week to try and cut down on false positives.

    I like a healthy debate on this blog so I'll ignore the insulting comment on my needing an AILA mentor. I'll only say that you really should do your own research rather than demanding I provide you answers. Fortunately for you, USC was kind enough to do this for you.
  10. Greg Siskind's Avatar
    Actually, it's a little more complicated than that. It IS possible that the phone call to DHS may have solved the problem if the problem arose in the last few days that the hotline has been available. Unfortunately, the vast majority of false positives are coming from the SSA side and the call to DHS will only help if DHS is the source of the problem. I don't have the data handy, but I believe something in the order of 90% of the problems are on the SSA side. Now the new data from DHS will help SSA more quickly resolve a problem since they'll have the data handy. But the problem isn't just how easy it is for SSA to correct a problem. It's not that hard for them to correct it now. It's how long they take to even getting around to resolving a problem. That's just the question of why does it take USCIS three years to work a naturalization case that only takes about 20 minutes of an adjudicator's time. It's a matter of being paralyzed by a lack of resources even to accomplish the most simple tasks.

    But even if EB3 and HMM are right that this is all no big deal. Why not protect American workers and allow them to continue working until DHS and SSA resolve the problem (assuming that the citizen or permanent resident dispute the false positive in a timely manner)? Is there some compelling interest we have in forcing employers to fire these employees before the government finishes looking in to the problem? We know that true illegally present immigrants are not going to launch protests since they would be inviting arrest and deportation.
  11. USC's Avatar
    "Additionally, a naturalized citizen who receives a citizenship mismatch with SSA can call USCIS directly to resolve the issue (in addition to the option of resolving the mismatch in person at any SSA field office.)"

    Read the anecdote.Hint: Does a naturalized citizen have a need for an I-20?

    "Pay attention to the last sentence."

    You would do well to take your own advise!
  12. USC's Avatar
    "Actually, it's a little more complicated than that. It IS possible that the phone call to DHS may have solved the problem if the problem arose in the last few days that the hotline has been available."

    Thanks for the clarification. If things are in fact getting resolved over the phone that would be a huge improvement.
  13. hmm's Avatar
    USC: you could use some manners.

    Mr Siskind: so why you do think DHS does not follow your (most obvious and reasonable) idea that employees are allowed to work while their mismatch is being looked into. What does DHS have to lose? I have no doubt that the DHS officials privately explain their position to AILA, so what is it?
  14. USC's Avatar
    Here are a couple of links on the legislative status of Basic (I prefer to call E-Verify, Basic, since it is unchanged from the Pilot program) :

    http://www.rightsidenews.com/20080514938/border-and-sovereignty/us-immigration-legislative-update-may-13-2008.html

    http://www.ocregister.com/ocregister/news/local/immigration/article_2035598.php

  15. hmm's Avatar
    "That's just the question of why does it take USCIS three years to work a naturalization case that only takes about 20 minutes of an adjudicator's time. It's a matter of being paralyzed by a lack of resources even to accomplish the most simple tasks."

    Actually, having gone through the name check ordeal I now understand that it does take more than 20 minutes as it involves getting checks from multiple agencies. I have seen court papers where the process is described in some detail over the course of several pages and it IS quite formidable what they have to do. This is not to say that USCIS cannot do things more efficiently; it is just not easy as they are bound by numerous stupid laws and also by quite limited resources.
  16. USC's Avatar
    The champion of all immigrants & immigration reform shows that he hasn't lost his sense of humor:

    http://www.necn.com/Boston/Politics/Obama-Pray-for-his-return-to-good-health/1211736659.html

    I did, however, get the chance to glance at the speech he planned on delivering today, and I'd like to start by passing along a message from him: "To all those praying for my return to good health, I offer my heartfelt thanks. And to any who'd rather have a different result, I say, don't get your hopes up just yet!"

    So we know that Ted Kennedy's legendary sense of humor is as strong as ever, and I have no doubt that his equally legendary fighting spirit will carry him through this latest

  17. Immigrant's Avatar
    Reply to USC:
    Hmm I might be wrong about calling USCIS or SSA or DHS to tell you the truth I have no idea which govt. agency he called. as I said it didn't happen to me it happened to my brother. one of your argument against my so called antidote is the Naturalized citizens do not require I 20. would you care to point out where did i say he is a citizen? he is actually a foreign student perusing PHD so he needs to have an I 20 last time I checked. I needed one.. . I would really appreciate if you would look at what I said before accusing me of lying.

    On a side not don't take me as an anti-immigrant. I am not; I am an immigrant my self. Also just from financial point of view I support a path to legalization for all the undocumented Immigrants. US economy just cannot take the removal of all the undocumented immigrants but I also understand the need to protect citizens and the documented immigrants. I don't think any one will or should have a problem with that. Politicians do need to at least show that they are protecting the American workers if any thing has to pass for the undocumented immigrants it has to be doe only after the public is confident that there will not be another 12 million immigrants in a few years time that will need to be legalized for that we need to have enforcement and more importantly a sensible way for the businesses to get workers in this country.
  18. Legal and no longer waiting's Avatar
    I have a more general question - since when does a secondary document (SSA recored) started to overrule the primary document (EAD, work visa, LPR card, birth certificate, naturalization certificate)? The SSA does not give people the right to work - it is their status that gives them the right to work. Even if a no-match letter is sent by the USCIS, if the person has the primary document authorizing him/her to work, there should be no question that this person should be able to continue to work.

    Greg, do you think this argument can be used in court to overturn this rule should it come out in the current version?
  19. USC's Avatar
    "one of your argument against my so called antidote is the Naturalized citizens do not require I 20. would you care to point out where did i say he is a citizen?"

    I was merely pointing out to hmmmm that only naturalized citizens were eligible to use the hotline. Clearly, someone whose status requires an I-20 is not a naturalized citizen and thus per the new reg ineligible to use the INS (USCIS) hotline.

    In light of:

    "Hmm I might be wrong about calling USCIS or SSA or DHS to tell you the truth I have no idea which govt. agency he called"

    And

    "I would really appreciate if you would look at what I said before accusing me of lying."

    My apologies!
  20. EB3's Avatar
    "A piece of advice" to you, Siskind: Start rewriting that 400-page manuscript (I am reminded for some reason of that Property outline from "The Paper Chase"), because your interpretation of the 8-day rule is flat-out wrong. An employer is _not_ "required" to terminate an employee whose TNC has not been resolved within the 8-day, or even the 10-day, period. In fact, employers are affirmatively prohibited from terminating such an employee on account of the TNC while the TNC is pending, for as long as it's pending, even if it remains pending indefinitely past the 10-day window. (Thus, the "solution" you've been hawking doesn't address an actual problem.) I implore you to read the statute and MOU very carefully and adopt the correct view before you are embarrassed.

    And yes, the Westat report _is_ too dated.
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