Immigration laws require employers to ensure employees are legally authorized to work in the United States. Over the last few decades, the E-Verify system has become the “go-to” way for employers to ensure compliance. The online system, administered by the Department of Homeland Security (DHS), compares an employee’s Form I-9 with records available to DHS and the Social Security Administration (SSA). Within seconds, the system is supposed to determine whether a prospective employee is authorized to work in the United States, granting the employer peace of mind and simplifying the hiring process.
Unfortunately, as reported by The Wall Street Journal, the recent uptick in workplace immigration raids has highlighted E-Verify’s flaws. The system can be easily manipulated because it does not use biometric data to verify the employee. Instead, the system only checks the Form I-9 information against the DHS and SSA database. Thus, a noncitizen unauthorized to work in the United States can easily pass an E-Verify check by using someone else’s identification documents when filling out the Form I-9.
Furthermore, many employees provide employers with a state driver’s license to prove their identity. Unlike a federal document – for example, a passport – state driver’s licenses are not part of federal databases and cannot be compared for purposes of E-Verify. As such, all that is required for clearing E-Verify without raising red flags is a U.S. citizen or permanent resident’s name and social security number printed on a falsified ID.
Employers enrolled in E-Verify should understand these inherent limitations and take appropriate action. They should only use E-Verify as one component of a comprehensive employment eligibility verification process. They should also ensure that they have in place thorough document examination procedures and regular compliance audits, to try to better protect against potential violations.
In addition, employers should consider operating under the premise that their workforce is reflective of average rates in their industry for unauthorized workers. This is supported by recent worksite enforcement actions that have created significant workforce and operational disruptions to employers despite their enrollment in E-Verify. To prepare for these disruptions, employers should consider communicating and planning with suppliers, partners and customers in advance.
No solution to these issues is ideal, but by understanding the limitations of E-Verify and controlling certain variables, proactive employers may be able to limit their exposure to significant legal and financial consequences that flow from E-Verify’s vulnerabilities. If you have questions about the E-Verify system or your company’s hiring process in general, please reach out to attorney Andrew Mahon or any member of Barley Snyder’s Immigration Practice Group.
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Summer associate Michael Votano assisted with the drafting of this legal alert.
