GOP lawmakers push for mandatory E-Verify

By KIMBERLY ATKINS, Lawyers USA, the national sister paper of Lawyers Weekly

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The controversy over the electronic system designed to help employers identify whether their workers are legally authorized to work has been renewed by Republican lawmakers who say the system should be expanded to keep jobs in the hands of American workers.

At a recent hearing of a House Judiciary subcommittee, Republicans urged White House officials to make the system mandatory for all employers in order to ensure that, during a time of record unemployment, jobs are held by Americans who need them.

“If we are going to have rules, we must follow the rules and follow the law,” said Rep. Ted Poe, R-Texas, at the hearing of the Subcommittee on Immigration Policy and Enforcement. “People who are here illegally [are] still here illegally. E-Verify is a way to make sure employers are hiring folks who are legally here.”

But Democrats pushed back, saying the system is fraught with errors and other problems, and creates an onerous burden on employers, particularly those running small businesses.

“Most of the burden would [be on] small businesses,” said Rep. Zoe Lofgren, D-Calif., citing a Bloomberg report that implementation of the system would cost small businesses $2.6 billion.

E-Verify is the Internet-based system that allows employers to verify the eligibility of workers by entering information on an employee’s I-9 form and having it checked against data collected by the Department of Homeland Security and the Social Security Administration.

The system is largely voluntary, though it is mandatory for some employers, including those with federal contracts and operating in certain states. About 238,000 employers are enrolled in the program, according to DHS, and over 16 million queries were run through the system in fiscal year 2010.

At the hearing, Republicans urged the Obama administration to make the system mandatory for all employers.

Although President Barack Obama expanded the program in 2009, requiring federal contractors to confirm the identities of its 4 million workers against the system, GOP lawmakers said more must be done.

“It seems to me that if this administration was really on board, there would be some carrot and stick to drive employers to this so that we have people legally here and in these jobs,” said Rep. Louie Gohmert, R-Texas.

While Theresa Bertucci, associate director of the Enterprise Services Directorate at the U.S. Citizenship and Immigration Services, testified that the administration has implemented education programs designed to encourage more employers to use the system, GOP lawmakers said that wasn’t enough.

“After [14 years,] we only have 11 percent” participation, Poe said. “At this rate, it’ll be 50 years before we get 100 percent.”

But Democrats like Rep. John Conyers, D-Mich., ranking member on the committee, said that the system won’t fix the issue of undocumented workers absent larger reforms to the nation’s immigration system.

“[E-Verify] simply pushes undocumented workers further into the shadows. This makes them more susceptible to abuse and exploitation, which drives down wages and working conditions for all workers, citizen and non-citizen alike,” Conyers said.

Bertucci said that although false “mismatches” – E-Verify notifications of discrepancies in cases where the worker was a citizen or otherwise qualified to work – have been reported with the system, new modifications to the program have brought the numbers down. In 2009, there was a 4 percent mismatch rate, while in 2010 the rate was 1.7 percent, she said.

Richard M. Stana, director of Homeland Security and Justice Issues at the Government Accountability Office, pointed out that employers and employees who use fraudulent eligibility documents won’t be detected by E-Verify.

“Despite the improvements to reduce fraud, E-Verify cannot verify eligibility documents,” Stana said. “The exact magnitude of the problem is not known, [but at least] 4 percent of confirmations were actually people who were not work authorized, but they either had fraudulent documents themselves, or they were complicit with employers” in submitting fraudulent E-Verify documents.

David Leopold, president of the American Immigration Lawyers Association, said the expansion of the “flawed” E-Verify system would also be costly to businesses.

“Expanding mandatory E-Verify would threaten the jobs of thousands of U.S. citizens and saddle U.S. businesses with additional costs, all at a time when we need to stimulate our economy,” Leopold said. “Expanding E-Verify now would be in direct contradiction [with] the goal of creating jobs.”

But House Judiciary Committee Chairman Lamar Smith, R-Texas, said the system is easy and effective.

“I’ve used the program, frankly repeatedly, to ensure that my staff members are eligible to work in the U.S., as all members of Congress are required to do,” Smith said. “It’s free, quick and easy to use. I am aware of criticisms of E-Verify, some legitimate and most not. But the fact remains that E-Verify is a very effective tool for employers who want to hire legal workers.”