With the clock ticking on the legislative session, President Obama held a Roosevelt Room meeting on immigration reform, even as House Speaker John Boehner dismissed the idea, at least for this year. At issue is the Senate's "Gang of Eight" bill. It offers many of America's 11 million undocumented immigrants a path to citizenship while still requiring them to pay back taxes. It's also designed to make legal immigration easier and illegal immigration more difficult. Lastly, it mandates the use of the federal government's intrusive and unreliable E-Verify system, aimed at cracking down on employers who hire unauthorized workers.
Opinions are mixed on the bill as a whole. Republicans claim the bill will increase budget deficits and unemployment, while decreasing native-born workers' wages. Democrats claim that immigration reform will reduce the federal deficit.
One thing that isn't up for debate are the significant drawbacks to mandating use of E-Verify for all US employers. Forcing United States businesses to use the system will encourage employers to discriminate against potential hires on the basis of nationality. Technical glitches will keep legal employees out of jobs. And creating one more national database for federal agencies to mine will pose a significant Fourth Amendment threat.
But the ACLU pointed out perhaps the biggest problem with a program like E-Verify. In attempting to solve a problem involving just a tiny fraction of workers, it brings the United States much closer to a "permission society," where the government grants or revokes the privilege to feed and clothe your family.
E-Verify is a system operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). It's used to verify an employee's eligibility to legally work in the United States. Currently, less than one percent of employers use it. The Gang of Eight bill makes using this system mandatory for every United States employer. And it must be used within three days of hiring. Beyond that, it mandates the use of tamper- and identity-theft resistant Social Security cards. Infractions can result in fines of up to $25,000 per violation or two years in prison.
A mandate with lots of mandates
The first problem with mandating E-Verify use is how much work it's going to create for employers. According to the E-Verify user manual, a freelancer who wants to contract out work will need to become a program administrator, tasked with chores like registering new users, opening and closing accounts and adding other program administrators and users.
In addition, the manual states that "Employers participating in E-Verify MUST:"
- Follow E-Verify procedures for each newly hired employee while enrolled/participating in E-Verify.
- Notify each job applicant of E-Verify participation.
- Clearly display both the English and Spanish 'Notice of E-Verify Participation' and the 'Right to Work' posters.
- Complete Form I-9 for each newly hired employee before creating a case in E-Verify.
- Ensure that Form I-9 'List B' identity documents have a photo.
- Create a case for each newly hired employee no later than the third business day after he or she starts work for pay.
- Obtain a Social Security number (SSN) from each newly hired employee on Form I-9.
- Provide each employee the opportunity to contest a tentative nonconfirmation (TNC).
- Allow each newly hired employee to start and continue working during the E-Verify verification process, even if he or she receives a TNC.
- Ensure that all personally identifiable information is safeguarded.
But, "Employers participating in E-Verify MUST NOT:"
- Use E-Verify to prescreen an applicant for employment.
- Check the employment eligibility for an employee hired before their company signed the E-Verify MOU.
- Take any adverse action against an employee based upon a case result unless E-Verify issues a final nonconfirmation.
- Specify or request which Form I-9 documentation a newly hired employee must use.
- Use E-Verify to discriminate against ANY job applicant or new hire on the basis of his or her national origin, citizenship or immigration status.
- Selectively verify the employment eligibility for a newly hired employee.
- Share any user ID and/or password.
Every United States employer must do all of this and, you know, run the business.
If you like your racism, you can keep it
The E-Verify system requires all employers to go through the entire interview, offer, negotiation and acceptance process before they are allowed to check whether any applicant is eligible to work. Of course E-Verify's propensity to put the kibosh on the hire at the end of the process will lead employers to discriminate against non-native born workers to save themselves the expense. Any expectation otherwise stretches credulity.
From the people who brought you Healthcare.gov!
Republicans are behind the push to mandate E-Verify. Apparently the tiny percentage of workers who are currently undocumented is such a menace that it warrants creating another government-created, government-run federal database and website, which every American who employs another American must navigate. Republicans have been all-too-happy to point out the many, many errors and hiccups created when the Obama Administration forced Americans to either buy insurance on the market or use a website created by the federal government. But even with an extremely limited number of users, E-Verify is showing the same kinds errors, crashes, glitches and security holes users experienced when trying to use Healthcare.gov.
Already, individuals have been wrongly flagged as unauthorized to work.
At The Hill, Jessica St. Pierre tells her story of losing a high-paying job due to errors in E-Verify.
In November 2010, I landed what I thought would be an exciting job in the telecommunications industry. I filled out routine paperwork, and expected to get started right away.
I was shocked when the company's HR department told me that an electronic system had flagged me as unauthorized to work in the United States. I promptly went to the Social Security Office, where I was told that there was no problem. Little did I know that the error was an administrative one that involved E-Verify, a system that I—like most American workers--knew nothing about. By the time the error was corrected, it was too late – I was already out of a job.
I didn't know what E-Verify was or why it existed, but I knew my life would be changed forever. I had to figure out why my name was flagged by a government computer, while I worried about how to explain my termination to a perspective new employer. Three months later and after suffering much stress, I got a lower paying job. The computer mistakes still haunt me because I now fear it could happen again, if I ever look for another job.
Mandating and expanding the program nationwide will explode instances of problems for employers and job seekers.
Come back with a warrant
Beyond that, another national database concentrates information on regular Americans, which intelligence agencies and law enforcement will mine for incriminating evidence. The DEA and IRS have already been caught abusing databases, circumventing the Fourth Amendment to gather evidence against Americans without warrants or probable cause, through administrative subpoenas.
In a country still struggling out of a recession, with unemployment still too high, the last thing anyone needs is another federal requirement which will make getting hired and hiring more difficult.
E-Verify is pretty much the definition of a solution whose drawbacks are worse than the problem it's designed to solve. Mandating its use will make life harder for employers and employees. It will increase hiring discrimination. And it will help turn the U.S. into even more of a surveillance state.