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It is hard to believe, but before 1986, the federal government was agnostic about whether an employer’s workforce was legally documented. That year, passage of the Immigration Reform and Control Act of 1986 first introduced the American workplace to the concepts of I-9 forms, unauthorized employment sanctions and over-documentation discrimination. Ever since, employers have been conscripts: deputy border guards trying to stem the tide of undocumented economic immigrants to the U.S.
Talk about the law of unintended consequences! Who knew that economic immigrants would not be deterred? That the economic boom times of the 1990’s would lead to sustained shortages in unskilled labor and a deliberate abandonment of enforcement of the 1986 1aw? That the I-9 requirements would spawn an industry of fake identification? Who knew, when the I-9 process failed, miserably and completely, to dissuade economic migrants from coming to America, that the policy makers, instead of conceding failure, would double down on employers with a new twist on the same old song.
Enter E-Verify, USCIS’s web-based, on-line system to check whether the I-9 data matches the data the government has in its data bases. Despite a lot of bad press, E Verify does work: it is (usually) fast, simple and done, and it does help employers who otherwise have no meaningful ability to suss out whether I-9 documents are real or fake.
But when it isn’t fast, simple or done, E-Verify- like the I-9 system before it, is fertile ground for unintended consequences:
- More identity theft: E- Verify puts a premium on having data which will “match” the data governmental data. What better data than that of a real person? E- Verify rolls out the photo tool to combat this, and what happens? The Photo Tool examines only Employment Authorization Documents and Legal Permanent Resident cards, so undocumented employees beat the system by avoiding these documents in the 1-9 process.
- No man’s land for authorized employees who get caught in the bureaucracy:
False positive final non-confirmations are rare, but they do happen-I personally know of two situations over the last year. And when they happen, there is no remedy for the employee whose record is wrong. The employer is almost sure to fire the employee-he enjoys statutory immunity from all legal claims so long as he relies in good faith on E- Verify, whereas if he keeps the employee on board, he has to tell E- Verify he is doing so-thereby inviting a visit from ICE. Where is this employee supposed to find a job where every employer requires E- Verify and where the employee has to rely on the bureaucracy for a data fix?
- More training costs for employers: to guard against discrimination, E-Verify prohibits pre-employment queries and requires employers to continue to employ employees with tentative non-confirmations until the situation is resolved. At a minimum, this means a week or two of work for any employee who decides to contest the tentative non-confirmation; at worst it means employees bent on gaming the system can move from job to job to draw a paycheck, while the employer has to keep recruiting and training, over and over again.
- A permanent underclass in Arizona. Mandatory E- Verify participation has led to an ever-increasing class of unintended consequences-our fellow Arizonans, brought to the U.S. as children, educated in our schools and drenched in our culture. E- Verify means thousands are doomed to suffer the sins of their fathers-they have no chance of employment in this State.
So where do we go from here? Employment continues to be a magnet that draws economic migrants, no matter what our immigration laws provide. Electronic verification is politically popular and continues to gain traction with employers.
Pragmatists say it is time to focus on fixing E-Verify, not opposing it. The New Employment Verification Act, co-sponsored by Congresswoman Giffords and now pending in Congress, puts fresh ideas on the table-a biometric option to the verification process and a remedy for Americans mistakenly rejected by the government systems. E Verify has commissioned an independent, comprehensive study of E-Verify in Arizona, which will include an assessment of its unintended consequences and undoubtedly, sound recommendations for tweaking the system. Most importantly, the DREAM Act, which will allow a path to legal status for undocumented children who can demonstrate their contribution to our society, is ready to move in Congress. Let’s make it happen.
If you have questions about E-Verify or I-9 compliance, I can help answer them: I am a business immigration attorney with an extensive background in employment law, practicing immigration law where it intersects with employment law. My niche includes all aspects of E-Verify. I help companies with E-Verify enrollment, implementation and audit, as well as I-9 compliance and LCA compliance. (Bonnie Gibson)
I also represent companies in all aspects of business immigration–including immigration compliance, policy development, and immigration benefits. My experience includes managing worldwide immigration benefits program for Fortune 500 companies; development of national interest waivers as alternative to labor certification; serving as expert witness in E-Verify and social security no-match employment disputes; and developing and managing I-9 and E-Verify compliance systems. Please contact me at bgibson(at)fragomen.com or call me at (602) 266-1825 for more information or to set up an appointment.
