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LABOR & EMPLOYMENT LAW — 04/09/09

Enhancing E-Verify will be a FY 2010 priority, testified USCIS acting deputy director

Michael Aytes, acting deputy director of US Citizenship and Immigration Services (USCIS), confirmed that enhancing E-Verify would be Fiscal Year 2010 priority during his testimony April 2, 2009, before the House Appropriations Subcommittee on Homeland Security, which discussed "Priorities Enforcing Immigration Law." E-Verify administered by USCIS in partnership with the Social Security Administration, is a voluntary, web-based program that allows employers to verify that their employees are authorized to work in the United States.

E-Verify has grown exponentially in the past several years, verified Aytes. Much of this increase is due to a growing number of states that have passed laws requiring all or some of the employers in their state to use E-Verify. Currently over 117,000 employers are enrolled, representing over 456,000 locations. An average of 1,000 employers enroll each week and participation has more than doubled each fiscal year since 2007. Employers have run over 3.6 million queries thus far in FY 2009. The volume of queries doubled from FY 2007 to FY 2008 from 3.27 million to 6.6 million, and in fact today, according to an analysis of Bureau of Labor Statistics data, over 14 percent of all nonagricultural new hires in the US are run though E-Verify.

Aytes testified that of all the cases verified through E-Verify, only 3.9 percent of queries resulted in a mismatch, or a Tentative Nonconfirmation (TNC), which is issued when the information queried through E-Verify does not match the information in SSA or Department of Homeland Security (DHS) databases and requires further action on behalf of the employees to resolve their cases with SSA or DHS. Of that 3.9 percent who were not immediately authorized, 0.4 percent of queries are those who were issued a TNC and successfully contested the case. The remaining 3.5 percent of queries that are not found work authorized by the system either did not contest the TNC, were unsuccessful in contesting or were found unauthorized to work at the secondary verification stage. Our goal, confirmed Aytes, is to continue to improve E-Verify's ability to instantly verify new hires, improve the accuracy of our data systems and strengthen training and monitoring of employers to ensure that they understand the program's requirements and are complying with them.

New data sources. In FY 2010, USCIS plans to improve the system's ability to automatically verify international students and exchange visitors through the incorporation of Immigration and Custom Enforcement's Student and Exchange Visitors Information System (SEVIS) data. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, said Aytes, the number of students and exchange visitors who receive initial mismatches should be reduced. In FY 2010, ICE will be launching a new version of SEVIS, SEVIS II, which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch is issued.

E-Verify also plans to provide automated system updates for any new hire with Temporary Protected Status (TPS) who has an expired EAD but is within an auto-extension time period. This system enhancement will decrease the number of new-hires of TPS recipients that receive an initial mismatch or TNC. Additionally, E-Verify continues to develop other ways to reduce the number of initial mismatches and improve system performance by analyzing system data. One example is a current effort to improve the date of birth entry field to avoid data entry errors such as reversing the day and month as is done in many other countries outside of the United States. This mismatch reduction initiative includes improving the data matching algorithm and improving usability to reduce data entry errors.

Combating fraud, expanding photo screening tool. To build on the photo screening tool's success, said Aytes, the E-Verify program is actively working to expand the types of photos available in this functionality. This would prevent one possible avenue of identity theft currently used to "game" the system. This effort will be combined with a reduction in the number of documents acceptable for Form I-9 purposes, such as those listed in the Interim Final Rule, which took effect April 3, 2009. The photo screening tool allows a participating employer to check the photos on Employment Authorization Documents (EAD) or Permanent Resident Cards (green card) against images stored in USCIS databases, thus allowing employers to determine if the document presented by the employee as a DHS document is a complete fabrication or has been subject to photo-substitution.

USCIS is also working to initiate a state-based department of motor vehicles (DMV) data exchange that would incorporate driver's license photos into the photo tool. This would represent a significant enhancement to the system, since new hires most often present a driver's license for Form I-9 purposes. To date, no state has yet agreed to add its driver's license data to the photo tool.

USCIS is aware identity fraud is a serious concern in the US and is especially concerned with how this practice affects E-Verify, said Aytes. While USCIS cannot detect all forms of identity fraud used by an employee who is run through E-Verify, we are working to find ways to accomplish this goal. USCIS has also begun examining other ways to detect and deter such fraud, such as enabling individuals to choose to "lock" and "unlock" Social Security Numbers (SSNs) for E-Verify purposes.

Usability and program efficiency. USCIS is re-engineering the E-Verify registration process to improve it and make the registration more effective, confirmed Aytes, by examining the best ways to validate the legitimacy of employers using the system, the individual registrants signing up to use the system and those using the system after the enrollment phase. Improving the registration portion of the E-Verify program will ensure that E-Verify has accurate and complete information on those employers using the program.

In addition, E-Verify is also working on implementing an electronic Form I-9. The first phase of this enhancement includes developing a stand-alone Form I-9 in portable format that will allow employers to electronically create, sign, and store the completed forms. In a future enhancement, the electronic Form I-9 will pre-fill the fields in E-Verify, eliminating the need for employers to input the data into the system after it was already recorded on the Form I-9.

E-Verify has grown exponentially in the past several years, verified Aytes. Much of this increase is due to a growing number of states that have passed laws requiring all or some of the employers in their state to use E-Verify. Currently over 117,000 employers are enrolled, representing over 456,000 locations. An average of 1,000 employers enroll each week and participation has more than doubled each fiscal year since 2007. Employers have run over 3.6 million queries thus far in FY 2009. The volume of queries doubled from FY 2007 to FY 2008 from 3.27 million to 6.6 million, and in fact today, according to an analysis of Bureau of Labor Statistics data, over 14 percent of all nonagricultural new hires in the US are run though E-Verify.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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