Academic journal article Rutgers Computer & Technology Law Journal

E-Verify, a Piece of the Puzzle Not a Brick in the Wall: Why All U.S. Employers Should Be Made to Use E-Verify, Just Not Yet

Academic journal article Rutgers Computer & Technology Law Journal

E-Verify, a Piece of the Puzzle Not a Brick in the Wall: Why All U.S. Employers Should Be Made to Use E-Verify, Just Not Yet

Article excerpt

INTRODUCTION

On November 10, 2008, National Public Radio ("NPR") began running a "funding credit" during their broadcast sponsored by the Department of Homeland Security ("DHS"). (1) The funding credit, which is similar to an advertisement, appeared like any other government-sponsored public service announcement: "[s]upport for NPR comes from NPR stations, and the Department of Homeland Security (DHS), offering E-Verify, confirming the legal working status of new hires. At DHS dot gov slash E-Verify." (2) Shortly after running the funding credit, NPR received so much criticism that its Ombudsman issued a statement assuring its audience that NPR did not endorse E-Verify and that it would remain objective in reporting on the program. (3)

E-Verify is an electronic employment verification program that allows participating employers to check identity and employment documents of recently hired employees against a federal government database. (4) Results are given near instantaneously, so that an employer quickly learns whether a new hire is legally authorized to work in the United States. (5)

However, E-Verify has flaws that have produced an uncomfortably high error rate, including errors where some legal employees are initially found to be unauthorized to work. (6) In response, the federal government has recently invested in upgrades that have solved at least some of the flaws, (7) but the system still needs significant improvement. (8)

This Note attempts to analyze the growing movement to make employer use of E-Verify mandatory at the federal, state, and local levels. While use of E-Verify is voluntary for most employers, the federal government requires nearly all if its contractors to participate. (9) Several state and local governments also require employers to use the program. (10)

Part I of this Note reviews the development of E-Verify. Part II presents an overview of recent state and federal actions implementing E-Verify and the legal questions raised. Part III outlines the impact E-Verify has had on employers and employees. Part IV discusses recent technological alterations and improvements to the program. Part V proposes a more effective implementation of E-Verify, recommending exclusive federal control of the program; significant investments in technological improvements; and a gradual federal rollout of E-Verify that in time will require its use by all U.S. employers.

I. THE ROLE OF THE FEDERAL GOVERNMENT IN IMMIGRATION AND THE DEVELOPMENT OF E-VERIFY

The federal government has plenary power over immigration matters. (11) Immigration policy and enforcement are often tied to employment issues, (12) but the burden of confirming the legal status of employees fell to employers only with the enactment of the Immigration Reform and Control Act of 1986 ("IRCA"). (13) The IRCA established sanctions for employers that hire "an alien knowing the alien is an unauthorized alien," i.e., immigrants who are not authorized to work in the U.S. (14) Employees in turn must present appropriate documentation establishing both their identity and employment authorization. (15)

With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Congress directed, as part of an enhanced enforcement program, the development of an electronic employment verification system between the Immigration and Naturalization Service (now part of DHS) and the Social Security Administration ("SSA"). (16) Together, the agencies established an Internet-based system employing the SSA's database. (17) The project, initially known as Basic Pilot, was to expire after four years, but Congress and the President have repeatedly extended it. (18) Recently, Congress and the President extended E-Verify through September 2012. (19)

E-Verify is free and voluntary for employers who, to participate; sign a Memorandum of Understanding ("MOU") with the DHS. …

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