It’s Not Time to Expand E-Verify, It’s Time to Face Reality

Commercials are the product of imagination, fanciful thoughts, or, in some cases, outright absurdities.  We all know that geckos can’t talk, ducks can’t alert us of danger at every turn, and that toddlers aren’t fully conversant in the complexities of trading stock.  Many of us know that the Staples “Easy” button sold in stores is, in reality, an inexpensive, toy-like device that only plays the recorded word, “easy,” when pushed.

Even though it makes for a memorable commercial, the real “Easy” button can’t efficiently solve complex problems.  So in that way, and in that way only, is the assertion recently made by Congressmen Smith and Calvert here in Fox News Opinion valid.  Simply expanding E-Verify across the U.S. will not solve our country’s immigration quandary.

The Congressmen base their opinion, in part, on above-average numerical scores from surveys of E-Verify users.  However, the qualitative comments of many E-Verify users included in the October 2010 Customer Satisfaction Survey weren’t the rosiest, such as:

“The system was too cumbersome so never used.”

“Getting I-9 documents to HQ to E-Verify in 3 days is costly and problematic.”

“Adds another administrative task to a very limited administrative workforce.”

“As a small business owner, it is very cumbersome to use.  It requires too much of my very limited amount of time.”

E-Verify use, administration and oversight can be quite difficult because of the unwieldy combination of numerous manual and disparately automated processes.  The January 2010, Social Security Administration’s self-audit of its own E-Verify use over a two-year period clearly demonstrated this by detailing several of its shortcomings, to include:

Failure to use E-Verify on 19% of its newly-hired employees,

A 49% failure rate to timely conduct queries for new hires,

Improper re-verification of existing employees,

Verification of non-employees, and Inconsistent practices in pre-employment verification.

While the Social Security Administration’s record highlights process-based problems with large scale implementation and operation of E-Verify, there have been deeper problems that have not been remedied.  Interestingly, the Congressmen avoid mention of problems high-lighted in report after report from Westat, dating from 2002 to 2009.  Specifically, the 2009 Westat report (p. 233) stated that, “due to its inability to detect identity fraud, E-Verify remains unable to identify approximately half of workers without employment authorization.”  Also avoided in their advocacy is mention of the December 2010 GAO report (p. 21) to Congress, which stated that E-Verify was still vulnerable to identity fraud.  Fifteen years and millions of dollars later, E-Verify remains challenged and the mere expansion of it will not fulfill the promises of the supportive Congressmen.

Without a comprehensive solution that provides legal status for unauthorized immigrants, a nationwide E-Verify mandate would simply mean more headlines like those of Swift & Co., George’s Processing, Inc., and Howard Industries.  In late-2006, although it used the E-Verify system, Swift & Co. was subjected to a coordinated, nationwide raid of its facilities due to the use of false identities which tricked the system.  Missouri E-Verify employer, George’s Processing Inc., was raided in 2007 and paid a $450,000 fine, and Mississippi E-Verify employer, Howard Industries, was raided in 2008 and paid a $2.5 million penalty.  Each of these employers relied upon E-Verify, and each paid a heavy price for that reliance because the companies were held responsible for hiring unauthorized workers who cleared the E-Verify check.

Based upon E-Verify’s critical reviews and real world mishaps, the public and members of Congress should think long and hard about buying what Congressmen Smith and Calvert are selling.  Our country needs a meaningful solution for employers and the seven to eight million unauthorized workers in the country, about 60% of whom have likely been in the U.S. for ten years or more.  E-Verify will not force unauthorized workers into unemployment or to voluntarily deport themselves. Instead it will force them deeper into the shadows of the unregulated, untaxed economy, at a cost of $17.3 billion to the federal government in lost revenues over ten years. The attrition-through-enforcement approach has failed and more of the same, like mandating E-Verify across the U.S., is not the answer.  That is reality.

The American public should continue to embrace and celebrate the creativity of commercials.  However, they should reject a push to force a deficient program on us all based upon a belief in the imagined, fanciful, and outright absurd logic of one.  Instead, Congress should be encouraged to focus on comprehensive solutions that would benefit the greater economy.

Anthony Weigel is an attorney who focuses his practice in the area of business immigration law in the Kansas City, Missouri area.  Mr. Weigel is a member and volunteer leader of the American Immigration Lawyers Association.