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Greg Siskind on Immigration Law and Policy

MESSAGE TO USCIS: FIX E-VERIFY BEFORE COURTS SHUT IT DOWN

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Yesterday, USCIS changed the equation in their effort to get America's employers to use E-Verify. As the H-1B program continues to grow more and more useless as demand for the visa far outstrips supply, companies are faced with the unpleasant choice of simply doing without needed global talent or moving operations overseas where protectionist immigration policies are not an issue. Now they are being offered the ability to nearly triple the amount of time they can employ American-educated foreign students in the STEM professions (science, technology, engineering and math). And this may be enough extra time to be able to get the worker an H-1B visa or even a green card. The catch - the employer must participate in the E-Verify electronic employment verification system in order to have access to these talent workers.



Why is this a catch? After all, employers typically looking at hiring STEM workers are not the companies one would associate with hiring illegally present workers. Why would they balk at E-Verify? There's one big reason - it's lack of accuracy. Naturalized US citizens are a particularly big problem for E-Verify. USCIS was not required to electronically store data on naturalized citizens until 1996 and while the agency has attempted to move the paper records into their databases, the process is far from complete and perfect.



DHS has commissioned the Westat research organization to periodically report on the E-Verify program. Its most recent report released last September has some extremely disturbing data. Nearly 1 in 10 naturalized US citizens show up in E-Verify as being illegally present immigrants, a rate that is 30 times higher than for US-born citizens.



This wouldn't be a serious problem if workers could easily correct false positives and didn't have to worry about losing a job in the mean time. Unfortunately, the government can take months - sometimes more than a year - to resolve a problem and employers are forced to fire the employee. The LA Times reported on this very problem just yesterday. This is obviously very bad news for a worker. But it becomes a nightmare scenario for the worker when most employers start using the system. In effect, the worker faces long term unemployment as one employer after another refuses to hire him or her despite the fact that the person is a US citizen.



We'll start to see this soon in Arizona, the first state that has mandated all employers use E-Verify. Right now, only 15% of employers are using the system, but that number is rapidly expanding. And with yesterday's announced rule, some industries that heavily use H-1B workers will likely start rapidly signing up for E-Verify. This could spell serious trouble for the unlucky citizens caught in this mess. This is even more scary when one thinks of millions of people trying to fix problems at the same time (especially if the no-match rule comes in to force at the same time). Why would we believe that USCIS and the Social Security Administration are prepared to handle the onslaught of requests to resolve false positives when they can't handle the relatively small demand they currently face?



There is a solution. Give workers who seek to dispute an E-Verify finding a window of time to lodge a request to resolve the nonconfirmation finding - perhaps 30 days - and then protect the worker from termination while the dispute is being resolved. Employers may not be thrilled about potentially having to later terminate an employee who turns out not to be authorized to work, but my guess is that they'll judge this a better trade off than losing the services of someone who is a good fit for the company. They will also appreciate the protection from liability associated with continuing to employ the worker.



Some may say that this form of protection will simply protect illegally present workers who would be able to continue working while the dispute is resolved. But this does not fit with reality. Employers who have received no-match letters over the years will tell you that as soon as an illegally present worker learns that the government believes they may be here illegally, the worker takes off. They are not looking to be picked up by ICE agents and deported. The workers who stick around and attempt to resolve an E-Verify nonconfirmation are overwhelmingly going to be people that have a legitimate claim to work.



If the voice of reason doesn't work with DHS, however, a judge is inevitably going to shut down E-Verify. There is a CLEAR constitutional problem with a system that is statistically proven to discriminate - and at a high rate - against citizens born abroad. And once innocent US citizens start to lose their jobs in big numbers, you can bet there will be a national class action lawsuit.



The amount of money that could be wasted if E-Verify is shut down would be enormous and the government's legitimate efforts to enforce immigration laws would face a colossal setback if the courts ended the program. DHS can head this off with the type of change I'm suggesting.

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Comments

  1. Ali's Avatar
    It's perfectly reasonable to me for USCIS to extend the time from 90 days to however long it typically takes SSA to process corrections, say 6 months. Also, rather than send out no match letters all at once, do it in shifts so that SSA isn't overwhelmed at once. Target one industry or size of employer one quarter, another the next, and so on. Remember, too, that SSA sends out annual statements around workers' birthdays that workers should check for accuracy. They could and probably should mount an ad campaign reminding workers of that and telling them to proactively correct errors.
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