May 21, 2008 9:53 AM
This is the concluding installment in a three-part series on e-verify.
With Steve Levy trying make the voluntary Federal e-verify system mandantory for 16,000 Suffolk employers, it is important to look at the flaws in the underlying Federal program.
The leading Latino civil rights group, MALDEF, has warned that "forcing a deeply flawed system upon an unstable economy" will "increase discrimination against Latinos and other national origin minorities, present burdensome costs to businesses, and threaten the jobs of ...native born Americans...".
To understand why discrimination will increase against Latinos and Asians, it is important to return to the Congressional testimony of Mitchell Laird of the U.S. Chamber of Commerce. Laird said:
In our experience, there is a tremendous disparity between the initial E-Verify
results for U.S. citizens versus the initial results for resident aliens. Only 3.2% of U.S.
citizens received an initial response other than “employment authorized,” while almost
75% of resident aliens received an initial response other than “employment authorized.”14
Because of the additional costs under E-Verify of an initial response that is not
“employment authorized,” in our experience, resident aliens are more expensive to
employ than U.S. citizens. Consistent with our experience, an independent study of the
web-based Basic Pilot Program, which DHS refers to as E-Verify, concluded that
foreign-born employees were thirty (30) times more likely to receive a false tentative
nonconfirmation as were U.S.-born employees.
Another disparity between the treatment of U.S. citizens and resident aliens is that
only resident aliens are subject to the photo comparison tool in E-Verify. If a permanent
resident alien submits his or her resident alien card as a “List A” document for proof of
identification and work authorization, then the employer must compare a copy of the
resident alien card to a photo from the Department of Homeland Security database.
Employers are required to retain a copy of the resident alien card with the employee’s I-9.
This creates another level of liability exposure for employers because the E-Verify
manual is clear that the two photographs must be exact. That can be difficult to
determine, especially if the employer is looking at a photocopy of the resident alien card.
The copy of the card is then retained and the employer is subject to the possibility that
Immigration and Customs Enforcement (ICE) or some other agency will second-guess
the employer’s determination that the two photographs were an exact match. If the
employer is not certain that the photographs match exactly, then that serves as a tentative
nonconfirmation, which means extra work and costs for the employer, the employee, and
DHS. The employee must go to DHS to resolve the issue, and the employer has an
additional E-Verify case to monitor.
In MCL Enterprises’ experience, only ten out of thirty-nine queries on resident aliens resulted in an
initial response of “employment authorized.” Sometimes more than one query is run on a single employee.
Information may be entered incorrectly when running E-Verify. When this happens, the employer must
“resolve” the query by indicating that it was an “invalid” query. The employer then runs a new initial query on that employee and gets a new initial response. In our experience, invalid queries are much more likely to come from persons with compound surnames, who are much more likely to be resident aliens. If
we assume that all the invalid queries on resident aliens resulted in duplicate queries on a single employee,
then a little over two-thirds of all resident alien employees (21 out of 31) had an initial result other than
“employment authorized.”
Because of the disparity in cost and the disparity in liability exposure between
applicants who are U.S. citizens and those who are resident aliens, I believe the current
E-Verify system puts pressure on employers to give preference to applicants who look
like they will check the box on the I-9 indicating that they are a U.S. citizen.
Other blogs in this series:
Part 2: Negative impacts of e-verify
Also, Immigration 101 blog on how employer sanctions laws have encouraged discrimination in the past.