E-Verify is no panacea

Jon Feere’s opinion piece suggesting that the D.C. Council mandate employer use of DHS’ E-Verify system as “an easy-to-use, free” means to promote employment of its “lawful constituents” demonstrates again that misinformation and a desire for a quick fix leads to bad policy choices. E-Verify is no panacea, and would cause more ills than it would cure.

First, the system remains prone to errors in light of the sheer number of individual records maintained by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). This is exacerbated by the complexity of DHS’ employment authorization regulations, which in many cases permits continuing employment without the type of agency action that would trigger an update in the individual’s record E-Verify queries. And whether or not DHS or SSA is at fault for an erroneous determination, E-Verify nevertheless requires that the employer terminate the employee where non-confirmations can’t be corrected. Moreover, the burden is entirely on the employee to fix what is often a government record problem, relying on two agencies not necessarily known for their swift responses or sterling customer service.

{mosads}Second, compelling D.C. employers to use E-Verify would impose on them very real and potentially substantial staff training and administrative costs. Employers must designate who on staff will perform the E-Verify checks, and those employees must be trained. That initial and continuing training commitment is carried out on the employer’s dime, so “free” E-Verify is not. Employers with a high rate of turnover – e.g., restaurants – would be particularly hard hit.

Third, mandating E-Verify would impose on D.C. employers far-reaching regulatory compliance commitments that, for most companies, are now entirely voluntary. Employers can’t simply create an E-Verify account, log in, and start submitting inquiries. They must first sign the 17 page, single-spaced E-Verify Memorandum of Understanding with DHS that dictates, among other things, that DHS and SSA may unilaterally and without limitation institute “new verification policies and procedures” without the need to obtain the Employer’s agreement. The D.C. Council would therefore be imposing on D.C. employers a level of federal intervention (and, potentially, caprice) into the hiring process far beyond that required of most companies by current law.

But that would all be worth it if mandatory E-Verify put unemployed, authorized D.C. residents to work, right? Only it wouldn’t. Given the currently heightened level of DHS employer enforcement, what D.C. business would today choose to hire an undocumented worker if a work authorized resident was readily available? And while E-Verify imposes a more stringent standard on the types of documents a new employee may use to establish identity and work authorization, document fraud could continue to thwart the system.

Fourth, rather than creating employment opportunities for D.C. residents, imposing E-Verify would, whether intended or not, likely put a substantial number of heads of household out of work. This would force families into poverty who are presently solvent, and thereby impose substantial new costs on already overburdened D.C. social service agencies. Ultimately, D.C. taxpayers would have to pick up the tab.

E-Verify is no magic bullet, and imposing a flawed system on D.C. businesses by legislative fiat may score political points with some constituencies, but it will substantially burden employers, employees, and tax payers. Thankfully, the D.C. Council is too smart to do that.

There is a role for a reliable and effective electronic employment verification system in ensuring that workers are properly authorized, but such a system does not yet exist. Until Congress acts to adopt meaningful, thoughtful, and rational immigration reform, D.C. would be wise to side-step a make believe solution and its substantial unintended consequences.

Tievsky is chair of the Washington D.C. Chapter of the American Immigration Lawyers Association.