Technology Team Newsletter: E-Verify in the Technology Industry

E-Verify is the most controversial employment verification system ever implemented in the U.S. As a "free" internet-based program run by the Department of Homeland Security, Citizen and Immigration Services with the Social Security Administration, E-Verify offers a glimpse into the future of immigration and opens new doors to complex issues that could greatly impact all industries, including technology.

The view among many experts is that unless the government dramatically improves E-Verify, no employer should volunteer for it. The problem with this belief is that it assumes, given the unavailability of researched data, that E-Verify will produce the same results for every employer. From an immigration compliance perspective, however, this view is not altogether true because employers tend to "behave" or experience problems that are particular of their industry.

Given the technical nature, socio-economics and education required to hold positions in the technology industry, unauthorized (or illegal) aliens are less likely to be employed by employers in this area. In this context, E-Verify is, therefore, less likely to produce or create undesired results. Employers in the construction, hospitality and other similar industries are more vulnerable to experiencing problems with E-Verify because of the socio-economic background of its employees. While E-Verify presents its "cons" as many program would in its initial stages, it has a number significant "pros" that should be seriously considered by employers in the technology field.

Apart from federal government contractors and employers in states in which the program is required by state law, as of September 8, 2009, E-Verify is voluntary, and approximately 136,000 employers are currently registered use the program. According to the Department of Homeland Security, 96 percent of employees are confirmed as authorized for work within 24 hours when using E-Verify, while about 4 percent receive initial mismatches. Less than one-half of a percent of those mismatches are later confirmed to be authorized to work, meaning the system is generally reliable in spotting mismatches.

Comparing information from worker job applications with data stored by the Department of Homeland Security and Social Security Administration, E-Verify either confirms that the employee is "employment-authorized" or issues a "tentative non-confirmation if the employer receives a tentative notification, the worker then has eight (8) working days from the issuance of the tentative non-conformation to contest the finding. If the employee does not contest the finding, the issuance becomes final and the employer must terminate the worker or risk being found in violation of immigration laws.

Employers in the technology field have, for the most part, a high compliance index. Given the high compliance, it is advantageous for many employers in the technology field to use E-Verify. The program would allow employers to query the government databases regarding the validity of documents presented for purposes of employment verification. This would not only reinforce the compliance systems to avoid any potential liability, but allow an added benefit that such verification will be in alignment with applicable requirements created by government contracts requiring security clearances and other important requirements. Further, employers in the technology area will be granted safe harbor protection in the event of discovery of unauthorized workers, thus, avoiding penalties.

Adding the use of E-Verify will not be more costly in terms of personnel hours to implement compliance for employers in the technology area, as existing compliance officers are already an active and important component of their corporate administrative structure.

E-Verify would also facilitate and potentially increase the process of the implementing I-9 auditing and reporting by presenting E-Verify results to auditors. Even further, it would help banks to attract and retain talented foreign national graduating from American universities who may qualify under the STEM program (science, technology, engineering, or math) for an extension of up to 17 months of Optional Practical Training, in addition to the initial 12 months granted. E-Verify, thus, would provide two opportunities to obtain foreign workers with H-1B visas.

While the advantages are forthright in demonstrating that the E-Verify process can improve how employers in the technology industry do business, slight disadvantages still exists and the government looks to continue improving the accuracy and efficiency of the program. Some errors may lead to termination of lawful U.S. workers; the short, eight-day period provided to employees may not allow the resolving of discrepancies; and the lack of a formal appeal process for the employer make E-Verify a controversial tool in its current state. Particularly concerning is the fact that E-Verify is unable to detect many forms of document fraud and identity theft.

In spite of the weaknesses of E-Verify, the program has important compliance benefits that would further shield from liability. As immigration policies continue to shift focus to the employer, E-Verify remains a viable program to remain compliant.