The Uncertain Future of E-Verify?

Immigration Attorney Donald ParkerBy: Donald Parker

E-Verify is an online system operated by the Social Security Administration (“SSA”) and the Department of Homeland Security (“DHS”) that allows employers to check both the validity of a new employee’s Social Security Number and whether that employee is authorized to work in the United States. On the drawing table in various forms since 1996, but revived and re-implemented in 2007, E-Verify has to-date been a voluntary system for most employers in the United States. Once an employer registers with E-Verify it is required, however, to process all new hires through the E-Verify system.

E-Verify is intended to be an add-on to the I-9 Employment Verification process that has been required of all employers for several decades. Many of our clients have registered with E-Verify and the returns so far have been largely positive. While the system can occasionally return false positive data that can then take several weeks to get resolved with the SSA and DHS, these problems are not common. Indeed, this bright-line test approach has its advantages. Employers in industries that have a high level of workers without proper legal authorization to work like the ability to determine up front whether the employee’s Social Security Number is valid and/or whether the employees in fact are authorized to be employed in the United States.

Until recently, most immigration law practitioners felt that the early success of E-Verify signaled that DHS would make it a mandatory system of all employers in the United States within the next several years. And that may still happen. In the outline of a Senate proposal that was issued recently for Comprehensive Immigration Reform legislation, however, there is language that suggests that the employment verification system in the United States would be revamped and made stronger. The Senate proposal contains a number of strong statements relating to immigration and employment control issues and processes that are clearly intended to open the door to a dialogue on an “amnesty” program for persons that are in the United States illegally. While this is an admirable and sensible goal, we would hope that the Senate does not throw the baby out with the bathwater when it comes to E-Verify. The combination of the I-9 verification process and a mandatory E-Verify system is a powerful tool for employers to control their hiring foreign nationals. E-Verify works and works well and efficiently and our hope is that the Senate does not turn its back on it in the desire to appear “tough on immigration”.

For more information on this topic, please contact Donald Parker.

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