Study Slams Mandatory E-Verify Program As Ineffective, Expensive, Intrusive

The CATO Institute has issued a report lambasting the concept of a federally-imposed electronic employment eligibility verification system as ineffective, expensive and intrusive.

The report is arriving as more and more states are joining Arizona in passing laws that require employers to use the federal government’s existing E-Verify program to confirm work authorization and as the federal government is threatening to make its use mandatory nationwide.

The report says this state and federal effort to require use of any such electronic employment eligibility verification (EEV) program is ill-conceived and ill-advised, promising to create more problems than it may potentially solve.

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally.

The report predicts such a program will actually result in an increase in identity fraud, document fraud and abuse of desperate foreign nationals seeking a better life in the United States.

Such a system would make working in the United States more difficult, of course, but it would not eliminate the United States’ attraction to immigrants. Some potential illegal immigrants would change their plans, but others would respond quite differently. Some workers and employers would collude to avoid this immigration enforcement system. Work “under the table” would increase and, along with it, other forms of illegality.

The value of committing identity fraud would rise, and more illegal immigrants would commit this crime or deepen the minor frauds they are now involved in. Criminals and criminal rings would use the Social Security number (SSN) data from stolen laptops and hacked databases much more often in identity fraud as a robust black market for Americans’ personal information emerged.

The use of these data to fabricate mock identities would compound the problem for victims in a diabolical way. Seeking to prove their right to simple employment, American workers would have to appeal to bureaucrats who assume they are identity thieves.”

The CATO Institute says EEV constitutes one more excessive, Big Brother intrusion by the government into our privacy and an attack on our civil liberties.

Even if it were free, the country should reject a national ID system. It would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes. “Mission creep” all but guarantees that the federal government would use an EEV system to extend federal regulatory control over Americans’ lives even further.

But, the system is not free. CATO says that creating an accurate EEV system would require a national identification (ID) system costing the taxpayer about $20 billion to create and hundreds of millions more per year to operate.

This figure does not take into account the time that Americans and legal workers will waste gathering paperwork and standing in line at government offices waiting to correct errors.

The current E-Verify system has been maligned as error-prone. A human resources association reports that the social security database, which is the source used by E-Verify, has a 4.1 percent error rate. The group, Human Resource Initiative for a Legal Workforce further explains:

If all U.S. employers were to use the system, as many as six million U.S. citizens and legal residents could be denied employment due to bureaucratic error.  The error rate for legal foreign-born workers is estimated to be as high as 10 percent – opening the door to increased discrimination based on national origin.  

The federal government has said it will try and improve the system, according to this article in the Indianapolis Star.

Employers Face Stiffer Fines For Immigration Violations

Employers who violate immigration laws will face stiffer fines effective March 27, 2008, announced the U.S. Attorney General’s Office. 

The fines are going up on average 25 percent, which the government says is simply an adjustment for inflation, the last change being in 1999.

Employers may be fined if found to have knowingly employed undocumented works or for other violations, including failing to comply with the requirements relating to employment eligibility verification forms, wrongfully discriminating against job applicants or employees on the basis of nationality or citizenship, and for immigration-related document fraud.

The minimum penalty for knowing employment of an unauthorized alien jumps $100, from $275 to $375. The maximum penalty for a first violation is increasing from $2,200 to $3,200.

The largest hike raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-person basis; thus, if an employer knowingly employed, or continued to employ, five undocumented workers, he would be subject to five fines.

This increases comes on the heels of ramped up immigration enforcement raids and criminal prosecutions against businesses. 

Business owners object to the new fines, saying they combined with the worksite immigration enforcement campaigns will only increase the likelihood of discrimination against foreign nationals, according to the Dallas Morning News.

AZ Employer Sanctions Law Upheld By Federal Court; Plaintiffs to Appeal Ruling

The controversial Arizona state law that threatens employers with closure of their business for hiring unauthorized workers passes Constitutional muster, ruled a federal district court judge.

Employer Prosecutions Under AZ Sanctions Law On Hold Until March 1 Pending Court Ruling

Employers in Arizona received a reprieve until March 1, 2008 from prosecutions under a precedent-setting employer sanctions law pending a federal court ruling in a constitutional challenge to the state regulation.

DHS to Revise Controversial Social Security No-Match Regulation in Response to Lawsuit

The U.S. government has told a California court it intends to revise the controversial new DHS regulation that requires employers to resolve mismatches between employee Social Security numbers and existing records in government databases or risk criminal and civil penalties for knowingly employing illegal workers.

The government’s decision was prompted by a lawsuit over the regulation which had been put on hold pending the court’s decision in the case.

The motion filed by the Department of Justice last week requests a stay in the proceedings until the rule-making process is finished, which is estimated to be at the end of March 2008.

The motion states that as part of the rule-making process, the government will address concerns raised by the court, including conducting an analysis of the economic impact of the rule and its effect on small businesses.

The rule, titled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, was published in August and would have given employers three months to correct or verify Social Security numbers that do not match employee names after receiving a “no-match” letter from the Social Security Administration. If the names and numbers cannot not be reconciled, employers would be forced to fire the workers or be held liable for illegal hires.

The American Civil Liberties Union, the U.S. Chamber of Commerce, labor unions and immigrant rights groups sued the agency in September in California, alleging that government databases are so error prone that the rule would harm U.S. citizen employees and discriminate against foreign-born or simply foreign-looking or foreign-sounding workers.

In response, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking the government from mailing the letters while the court considers the case.

For more background on this issue, please see our previous article “Calif. Court Blocks New Social Security “No Match” Rule Pending Trial Judgment.”

New I-9 Form Released; 5 Docs Removed From Acceptable List For Employment Verification

USCIS has released the new Form I-9 required to be completed by all employers to verify a new employee is authorized to work in the United States. The most significant change is the removal of five documents from the list of those that may be used to verify identity and employment eligibility and the addition of one new, acceptable document, according to the press releases issued by USCIS Nov. 7.

Employers should immediately begin using the updated I-9 for any new employees. Employers do not need to fill out the new form for existing employees, but will need to use it when re-verification is required.

The five documents that are no longer acceptable proof of identity or employment are:

• Certificate of U.S. Citizenship (Form N-560 or N-561)

• Certificate of Naturalization (Form N-550 or N-570)

• Alien Registration Receipt Card (I-151)

• Unexpired Reentry Permit (Form I-327)

• Unexpired Refugee Travel Document (Form I-571)

One new document was added to List A of the List of Acceptable Documents:

• Unexpired Employment Authorization Document (I-766)

USCIS said these forms were removed because they lack features to help deter counterfeiting, tampering, and fraud.

The new, acceptable document is the most recent version of the Employment Authorization Document (Form I-766).

In total, the revised list of acceptable documents now includes:

• U.S. passport (unexpired or expired)

• Permanent Resident Card (Form I-551)

• Unexpired foreign passport with a temporary I-551 stamp

• Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B)

• Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer

The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and keep it in the employer’s records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

The new Form I-9 and M-274 handbook with detailed instructions for completing the form are available on the USCIS website. Brief instructions are available here. Forms may also be obtained by calling USCIS at 1-800-870-3676 or the national customer service center at 1-800-375-5283.

New Rule Simplifies (somewhat) Re-Entry to U.S. for Travelling H-1′s and L’s

Starting today, Nov. 1, H-1 and L non-immigrant visa holders and their dependents who have pending I-485 permanent residency applications and travel abroad no longer need to present the application receipt notice to re-enter the U.S., according to a new rule issued by DHS. 

The new rule applies to visa holders in the following categories: H-1B (specialty occupations), H-1C (nurses in disadvantaged areas), L-1A (intracompany transferee -managers, executives), L-1B (intracompany transferee – specialized knowledge) and their dependents. The notice amending rule 8 CFR 245.2(a)(4)(ii)(C) was printed in today’s Federal Register.

Previously, H-1 and L non-immigrant visa holders who had pending permanent residency applications and traveled outside of the U.S. had to present the original receipt notice at the border to avoid having their applications deemed abandoned. (Generally, applications for adjustment of status under INA 245 are considered abandoned when the applicant leaves the United States unless certain procedures are followed before the trip.)

This requirement presented hardships to those visa holders who needed to travel and had not yet received a receipt notice due to USCIS’ lengthy processing times. These visa holders either had to cancel their trip or risk having their application denied, thereby forcing them to spend more money and time to re-apply.

DHS determined the document was an unnecessary burden to the visa holder because the information is already available in the government’s database.

The visa holder must still establish he or she remains eligible for H or L status, is returning to resume employment with the same, previously authorized employer, and holds a valid visa, if required.

The rule change does not apply to those in removal, exclusion or deportation proceedings.

Rumors True: DHS Issuing New I-9 Employment Eligibility Verification Form

After initially denying rumors a new I-9 form was on its way, DHS has just informed AILA the new form and employer handbook may arrive as early as the week of Nov. 5.