Arizona’s E-Verify Experience Reviewed by USCIS Ombudsman
Arizona employers using the federal government’s E-Verify program are most concerned that tentative nonconfirmations are issued on work-authorized individuals, according to a December 22, 2008, report by the Citizenship and Immigrations Services (CIS) Ombudsman. Yet, according to US Citizenship and Immigration Services, the Department of Homeland Security’s service and benefits bureau, such occurrences happen in less than 0.4 percent of the total number of queries run. Tentative nonconfirmations occur when an employee’s name/number does not match or if there are multiple matches in the federal databases. Further assessment is needed to make a determination as to that employee’s work status. As of December 4, more than 96,349 employers have registered to use E-Verify. This figure includes voluntary users and those obligated to participate pursuant to state law.
Arizona’s Legal Arizona Workers Act, which took effect January 1, 2008, suspends and revokes business licenses of employers that intentionally or knowingly employ undocumented workers in the United States. As part of the law, all Arizona employers must check the legal status of their new hires using E-Verify. Media reports indicate that in its first year, Arizona’s sanctions law produced no civil actions against employers. Consequently, reports indicate that State Senator Russell Pearce (R-Mesa), who led the initial effort to create the law, is seeking a revision to it so that prosecutors can have civil subpoena power in order to drum up some sanctions against employers.
E-Verify is the federal government’s voluntary web-based program operated jointly by the US Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees. Established by the Homeland Security Act of 2002, the CIS Ombudsman provides independent analysis of problems encountered by individuals and employers interacting with US Citizenship and Immigration Services, the Department of Homeland Security’s service and benefits bureau, and proposes changes to mitigate those problems.
For its report, the Ombudsman interviewed a variety of Arizona employers to gain insights into how E-Verify is working in a universal, mandatory-use environment and to determine how E-Verify might perform if nationally mandated by immigration reform legislation. The Ombudsman determined from this study that mid-sized and large employers appear relatively satisfied with the speed and accuracy of E-Verify. Smaller employers, however, expressed varying levels of concern with user-friendliness. Also, confusion remains about the exact timing, and the specific processes, that must be followed by employers and employees after E-Verify returns a tentative nonconfirmation determination. Apart from these operational observations, the Ombudsman found that USCIS outreach and education efforts have been well received by system users, but may not be reaching smaller sized employers that represent 50 percent of the existing private US payroll.
Based on observations and analysis of E-Verify, the Ombudsman recommended the following to USCIS:
- simplify the language used in all E-Verify instructions and supporting documentation;
- make all registration and operational documents publicly available on-line for review by prospective E-Verify end-users and employees;
- ensure its education and outreach efforts reach small business communities;
- develop and add a tickler/calendar system into E-Verify capable of issuing timely system prompts to employers to advise them of their next appropriate course of action for each specific open and unresolved tentative nonconfirmations; and
- announce as a stated goal an intention to replace the current Form I-9 process for employers that voluntarily use E-Verify;
The Ombudsman reported that the E-Verify program has already received some system enhancements. One system upgrade instantaneously reports in real time a correction of the mismatched personal identifying information causing the tentative nonconfirmation, and in effect, proactively pushes a corrected E-Verify response back converting the prior tentative nonconfirmation determination to an “employment authorized” determination. The Ombudsman also noted that significant E-Verify system enhancements were put into place, which eliminated the issuance of tentative nonconfirmation determinations on newly naturalized US citizens and newly arrived immigrants.
Currently, the amount of enrollees excludes an estimated 168,000 federal contractors and subcontractors that will be added to E-Verify beginning in January 15, 2009 when a final rule amending the existing Federal Acquisition Regulation takes effect. That rule, subject to a few exceptions, mandates that all federal contracts of with a period of performance longer than 120 days and a value of more than $100,000 must contain a provision requiring government contractors to use E-Verify to ensure that new hires, and all existing employees who are directly performing federal contract work, are legally authorized to work in the United States. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. On December 23, however, a coalition of business groups led by the US Chamber of Commerce's National Chamber Litigation Center filed suit challenging the legality of rule.
The report can be found at: http://www.dhs.gov/xlibrary/assets/cisomb_everify_recommendation_2008-12-22.pdf EXE: http://www.dhs.gov/xlibrary/assets/cisomb_everify_recommendation_2008-12-22.pdf.
Reprinted with permission. © CCH
(Submitted Jan. 9, 2009)
<p>Arizona’s Legal Arizona Workers Act, which took effect January 1, 2008, suspends and revokes business licenses of employers that intentionally or knowingly employ undocumented workers in the United States.</p>