Mark A Ivener, A Law Corporation

House Holds Hearing on E-Verify

A hearing on April 14, 2011, focused on identity fraud as a continuing concern in U.S. Citizenship and Immigration Services’ E-Verify system for verification of work authorization.

Rep. Sam Johnson (R-Tex.), chairman of the House Ways and Means Committee’s Subcommittee on Social Security, noted in his opening statement that under the Internet-based E-Verify system, an employer first enters information from the Form I-9. Verification requests are transmitted to the Social Security Administration (SSA), which checks whether the worker’s information matches the SSA’s records; those involving noncitizens are then routed to the Department of Homeland Security (DHS). If a worker’s information does not match these agencies’ databases, a tentative “non-confirmation” (TNC) notice is sent and the worker must contact either SSA or DHS “to present needed documentation in order to keep their job.”

Rep. Johnson cited a Government Accountability Office (GAO) study (PDF) finding that the E-Verify system had made progress in improving accuracy, with immediate confirmations rising to 97.4 percent. He noted, however, that the GAO said the system was still vulnerable to unauthorized workers and unscrupulous employers presenting stolen or borrowed documents for the purpose of identity fraud.

Richard M. Stana, Director of Homeland Security and Justice for the GAO, testified that TNCs had been reduced but that the accuracy of E-Verify continues to be limited by both inconsistent recording of employees’ names and fraud. He said that about 0.3 percent of the total 2.6 percent (over 211,000 of newly hired employees) who received either a SSA or USCIS TNC were determined to be work-eligible after they contested a TNC and resolved errors or inaccuracies in their records. About 2.3 percent (about 189,000) received final nonconfirmations because their employment eligibility status remained unresolved. Mr. Stana noted that USCIS was unable to determine how many of those employees (1) were authorized to work but did not take action to resolve a TNC because they were not informed by their employers of their right to contest the TNC, (2) independently decided not to contest the TNC, or (3) were not eligible to work.

Among other things, Mr. Stana noted the GAO’s recommendation that USCIS could better position employees to avoid erroneous TNCs by disseminating information to employees on the importance of providing consistent name information and on how to record names consistently. USCIS said it began to distribute information at all naturalization ceremonies advising new citizens to update their records with SSA. USCIS also said it has commissioned a study, to be completed in the third quarter of fiscal year 2011, to determine how to enhance its name-matching algorithms. Mr. Stana said these were useful steps “but they do not fully address the intent of the [GAO’s] recommendation because they do not provide specific information to employees on how to prevent a name-related TNC.

In addition, Mr. Stana said identity fraud remains a challenge because employers may not be able to determine whether an employee’s documents are genuine, borrowed, or stolen. E-Verify also cannot detect cases in which an employer may be unscrupulously assisting unauthorized employees. Among other measures, USCIS has implemented a photo-matching tool for permanent residence cards, employment authorization documents, and passports. Mr. Stana noted that implementing biometric systems has its own set of challenges, such as cost and civil liberties considerations.

Mr. Stana noted that USCIS began implementing its “Self-Check” program in March 2011 to allow individuals to check their own work authorization status against SSA and DHS databases before applying for a job. Mr. Stana said the GAO found USCIS’s efforts to be a step in the right direction but insufficient “because, among other things, USCIS does not have operating procedures in place for USCIS staff to explain to employees what personal information produced the TNC or what specific steps they should take to correct the information.” Mr. Stana said the GAO also found that USCIS’s cost estimates for E-Verify may not be accurate.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.