H1B Visa Lawyer Blog
In my previous blog entry, I informed you of the E-Verify program instituted by the Federal Government. The Federal Government is requiring all of its contractors to utilize this system for employment verification of their employees. Even though this is a positive first step in ensuring that employers comply with legal hiring practices, the E-Verify system does have its drawbacks.
All participating employers are required to enter personal information from Form I-9 into the government database in order to submit a query to verify a new hire’s employment eligibility. All employers who sign up with E-Verify must manually enter this key information into the government database and wait for a response that will take approximately three (3) to five (5) seconds. Although this may seem like a simple task, there is a great chance for human error. If an employer enters the wrong data into the query, and in return receives a TNC or a mismatch, the employee is required to fix the problem, either in person or over the telephone with either the SSA or USCIS, to confirm their work authorization. This TNC or mismatch turns into a headache for the employee as well as the employer. Accordingly, there is a strong possibility that people that are legally authorized to work in the U.S. may be denied because of simple human data error.
Additionally, as with any Internet based computer programs, there is a possibility that the “system” could go down due to receiving too many queries at one time, or due to minor computer system glitches. However, the USCIS claims that E-Verify has the capacity to handle up to 60 million queries per year, and promises that it will continue to work to update the current pilot architecture to handle more queries if needed.
In addition, this program puts extra burdens on employers. Employers must have internet access in order to submit a query through E-Verify. Employers who do not already have existing Internet services must obtain them if they would like to enroll in E-Verify. Essentially, the employment eligibility program is a burden for those employers who wish to utilize E-Verify in the restaurant industry, retail stores, fast food chains, etc.
Furthermore, there have already been complaints of legally authorized workers receiving mismatches, or a TNC because a name change was not reported to the SSA, or because the employee had just been naturalized and the program had not been updated to reflect the recent change in status. At this time, the USCIS has reported that E-Verify does an automatic check of DHS naturalization records, and if no record is found, allows employees to call USCIS to correct their record rather than travel to a SSA office to contest the issue. Accordingly, there is still room for error.
Furthermore, employer participation in E-Verify does not provide a safe harbor from worksite enforcement, or more typically known as an ICE raid, conducted by the Immigration Customs Enforcement Team. However, an employer who verifies employment eligibility through E-Verify will have assumed to have not knowingly hired an unauthorized alien. Nevertheless, employers may still be given excessive fines if unauthorized workers are found during an ICE raid.
*E-Verify cannot be used for employees who do not yet have a Social Security Number (“SSN”) As an employer, you should not submit the query until you have obtained the employee’s SSN; however, you should complete all other necessary information on Form I-9.