Tuesday, September 3, 2013

Verifying your workforce

Republican Congressman Lamar Smith (TX-21) has introduced H.R. 1772, the Legal Workforce Act.  The Legal Workforce Act has been co-sponsored by 29 representatives, 28 Republicans and 1 Democrat.  Essentially, it would establish an electronic verification system for workers, getting rid of the I-9 process, and the electronic verification tool is based off the current E-Verify system.  This new electronic verification system proposed by Lamar Smith would be used by ALL employers for ALL employees.  The idea behind the system is nice enough, I guess.  Their goal is to ensure that employers are hiring only legal/documented immigrants and to punish employers who hire these undocumented immigrants.

The National Immigration Law Center is critical of the law stating that the "enforcement only approach that would put American workers at risk of losing their jobs, push immigrant workers into the underground economy, and increase the nation's budget deficit."  They also criticize the bill stating that it is out of step with most Americans who favor a balanced immigration reform approach.  Most civil liberty groups, including the American Civil Liberties Union (ACLU) are also critical of the bill pointing out many of its faults.

The E-Verify system is an internet based system which employers check with the Department of Homeland Security to verify (they used the name there) that a prospective employee is eligible to work.  The E-Verify system is already being used by the federal government and for state government hiring in 16 states.  Other businesses volunteer to be part of the E-Verify system.  Most employers who do participate let their participation known via a sign or when you sign up for the job, in the first place.

The E-Verify system currently works, as follows:

1. An employer hires someone.  The employee must fill out the I-9 form and the employer will enter the employee's information, including name, date of birth, social security number, and/or immigration status into the E-Verify web site.

2. Using the website information, the E-Verify program compares that information to the information kept by the Department of Homeland Security (DHS) and the Social Security Administration databases.

3. If there's a match, the E-Verify system notifies the employer that the employee has permission to work.  If there's not a match, it issues a tentative non-confirmation (TNC) notice.

4. If the Department of Homeland Security information indicates that the employee has permission to work then the employer is provided with an electronic image of the worker's ID and the employer must confirm that the electronic image reasonably matches the worker's actual ID.  Currently, the program is limited to passports and certain immigration documents.

5. If, however, the employee receives a TNC, the employee has eight federal working days to contact the Social Security Administration or the Department of Homeland Security to sort out the problem.  If the employee does not contact either the Social Security Administration or Department of Homeland Security within those eight days, the employee receives a final non-confirmation notice (FNC), and the employer is required by federal law to fire the employee.

Do you see any problems with that?

Citizenship and Immigration Services (CIS) found that in fiscal year 2012, 1 of every 400 cases submitted to E-Verify that resulted in a TNC determination was subsequently reversed by appeal of the worker.  If we had a system nationwide, we'd be looking at 400,000 people might be stopped from their ability to work because they have to go through government bureaucracy to resolve an issue that should have never come up, in the first place.

The CIS numbers stated above are not accounting 1.3 million people, or about 1% of the total working population, who received TNC's and didn't contest them.  Maybe they didn't contest them because they weren't told that there was anything wrong or were not informed how they were supposed to reverse them.  Many of them were forced to work for other employers who didn't use E-Verify.  If a mandatory system was in place, these employees would have no option.  About 1 in 560 were issued TNC's that were never resolved.

Errors in the E-Verify system can be caused by something as easy as a typo.  The ACLU highlights the story of Jessica St. Pierre whose employer had typed two spaces after her name, making sure that there was no match in the E-Verify system.  But say someone typed in your name wrong, you might receive a TNC because someone misspelled your name.  Another problem with finding matches is that it doesn't always update for those who have had their name changed.  The Government Accountability Office (GAO) has estimated that 164,000 CITIZENS per year will receive a TNC for issues related to a name change.  At this point, your employer would have to inform you for you to realize that you even have an issue.  Otherwise, you might not be able to keep your job because your name changed.

Right now, there is not a formal process for workers who receive an erroneous FNC that bars them from employment.  In some cases, CIS or the Office of Special Council for Immigration-Related Unfair Employment Practices (OSC) has intervened to correct erroneous FNC's but they are are chosen, fairly randomly.  There is a DHS hotline that is open from 8:00 a.m. to 5:00 p.m. and only with representatives who speak English or Spanish.  Maybe the hotline should be open longer and staffed with employees who actually speak the various languages being used by those who are being challenged with their TNC's.

Those who receive a TNC must reach out to either the SSA or DHS, it will be up to the individual to find out which, and figure out whatever the problem is that is blocking them from getting a job.  So imagine, you are a naturalized citizen from Vietnam.  You work two jobs and English is not your 1st language.  You receive a TNC and you are lucky enough to receive this information from your employer.  So you have to reach out to DHS and SSA, if you even know that, to try to figure it out.  Sounds rather complicated, right?  But there's more, in order for you to contest that, you have to get time off your job.  Say your employer doesn't grant you the time off.  You might get fired.  Congratulations.

CIS has tried to take one step toward resolving this issue by allowing workers to check on their E-Verify data.  Unfortunately, the information based online in the self-check is based on commercial and has been difficult to access and use for many people.

Right now, employers who abuse E-Verify are banned from using E-Verify.  17.1% of employers admitted they restricted work assignments until authorization was confirmed. 15.4% delayed training until employment authorization was confirmed.  2.4% reduced pay during verification process. Employers often won't tell flagged workers they have the right to appeal.  According to a survey of immigrant workers in Arizona, a third of immigrant workers were fired immediately after receiving a TNC.  Imagine that there is not ANY penalty for abusing E-Verify or a similar system like there would be in H.R. 1772 what would happen.

The GAO found that from April-June of 2008, the TNC rate for employees who were eventually authorized to work was 20 times higher for foreign-born employees than for U.S. born employees.  The Migration Policy Institute that erroneous non-confirmations will disproportionately affect "citizens with foreign names, naturalized citizens, and legal immigrants."  They also point out that "errors related to misspelled names and name-order mistakes...are more common with foreign names."  Because of this, foreign sounding names or hyphenated names are going to be discriminated against.  Why would you hire someone who is likely to not be confirmed?

For all of the people who were outraged by the National Security Agency should be afraid of an enhanced E-Verify system.  Already, the E-Verify system holds names, social security numbers, phone numbers, e-mail addresses, workers employers and industry, immigration information, and photographs in some cases.  So we can easily see how E-Verify could be used by law enforcement agencies to try to track people.  The ACLU is concerned that a mandatory E-Verify system could replace our current identification check.  They ask to imagine if every time that you were required to show your ID it was replaced with an E-Verify check.  So now your employer might know if you're buying guns, alcohol, cigarettes, speeding, medicine, etc.

Another concern with all of this information being held in one place is the risk of identity thieves.  Anytime you have that much information stored in one place, one person might be able to steal all of your information.  Imagine if they had all the things stored there.  In October and December of 2009, Minnesota state officials learned that the company hired to process their E-Verify forms had allowed unauthorized individuals to gain access to personal information to over 37,000 individuals.

The AARP is concerned that expanding the SSA's administrative burdens would further diminish the ability of the SSA to deliver timely services to beneficiaries.  Especially if we expand the SSA right now, it could be even more problematic for the SSA to expand administrative duties.

Fiscal conservatives might find a problem with this legislation, as well.  According to the Congressional Budget Office (CBO), the legislation would increase spending by about $23.4 billion over 10 years, while decreasing federal revenues by $17.3 billion because the CBO believes there will be "an increase in the number of undocumented workers being paid outside the tax system."

Immigration and Customs Enforcement (ICE) found, in one example, that over 1300 employees of a meat processing plant were unauthorized workers even though EACH ONE OF THEM had been processes through E-Verify.  Out of the over 1300 unauthorized workers, 274 were charged with identity theft.

We would have additional workers for DHS, increased detention capacity, grants to local governments, and new costs to the SSA.  E-Verify will prove costly to small businesses.  According to Bloomberg, mandatory nationwide use of the program would cost employers with fewer than 500 employees about $2.6 billion per year.  Remember how Republicans hated Obamacare because of their problem with the cost to small businesses?

All of the costs talked about in this post, should highlight the problems with a mandatory E-Verify system and should show why the benefits of using the E-Verify system are greatly outnumbered by the sheer number of costs associated with it.  At a later date, I'll put up the reforms that should be talked about with the E-Verify system.  Maybe I'm getting tired of being descriptive all the time, instead of prescriptive.

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