Commentary: Dismantle E-Verify

If you own a business, you probably know about E-Verify. It isthe Internet-based program, administered by the U.S. Citizenship andImmigration Services, that allows an employer to verify theresidency status of a prospective employee.

In 1996 Congress made it "unlawful for a person or other entityto hire for employment in the United States an alien knowing thealien is an unauthorized alien," 8 U.S.C. [section]1324a(a)(1)(A).Regulations require a prospective employee and his employer to fillout Form I-9, Employment Eligibility Verification. In addition, theemployee must provide some form of identification. If the paperwork"reasonably appears on its face to be genuine," the employer mayproceed with the hire.

In 1996 Congress also created the E-Verify program. E-Verify is abig database, fed by information from the Social SecurityAdministration and other federal agencies. Drivers' licenseinformation is in the process of being added.

When a person applies for a job or is provisionally hired, theemployer may go to the website of Citizenship and ImmigrationServices and compare the information on the I-9 with the governmentdatabase. This is an additional step not required by the 1996 law.

If the information matches, which happened 99.2 percent of thetime in 2010, the employer is presumed to comply with the law.

This success has prompted several congressmen to proposelegislation that would mandate all employers to use E-Verify. Thegoal is to "reduce the jobs magnet that encourages illegalimmigration" and make available "more job opportunities tounemployed Americans."

Expanding E-Verify is a bad idea. The likely benefits are toosmall and the detriments too great to justify inserting the federalgovernment into every hiring decision.

For starters, there is the problem of errors. If the informationon an I-9 does not match the database and the employee contends thatthe I-9 is accurate, the employee must promptly call or visit theagency providing the incorrect information to the database andpersuade it to input the correct information. If the employee doesnot act soon enough or the agency stands by its information, theemployer is on notice that the employee may be an unauthorizedalien. Not wanting to be sanctioned, the employer will rescind itsjob offer or terminate the recent hire.

In 2010 0.3 percent of the E-Verify inquiries were erroneousmismatches that the employee could not resolve on time. Our totalworkforce is 154 million persons. If the status of all was verified,770,000 would lose their jobs, through no fault of their own. Isthis the way to create "more job opportunities" for Americans?

Just as disconcerting is the likely misuse of the database. Itcontains an enormous amount of personal information, includingSocial Security numbers, photos, phone numbers, email addresses,employer names, fingerprints and travel itineraries -- a bonanza forhackers. If the CIA cannot protect its database, can we expect theDepartment of Homeland Security, a much bigger and more diffuseagency, to do so?

Hackers aside, there is always the risk that unauthorizedofficials and government contractors will access the databaseinadvertently and cause the disclosure of information.

Last but not least is the prospect that the E-Verify programcould easily expand to host other uses for law enforcement and theintelligence community. This is government creep that should scareall of us.

E-Verify has been the subject of litigation. Several statesrequire businesses holding state licenses to use E-Verify as part ofa broader scheme to reduce the employment of unauthorized aliens.Getting incorporated, for example, is an act of licensing and bringsa business within the scope of the laws.

The states cannot impose civil or criminal sanctions on employerswho do hire unauthorized aliens. Only the federal government can dothat. But the states can revoke the license of the employer,imposing the "business death penalty."

The Chamber of Commerce challenged Arizona's version of the law.Various immigrant and civil rights groups, such as the ACLU,supported the Chamber. They argued that the 1996 federal lawcreating E-Verify implicitly denied to the states the right to makeparticipation mandatory. To allow otherwise would overload the E-Verify system and defeat its purpose.

In May, the U.S. Supreme Court upheld Arizona's law. The courtdid not see any inconsistency between the two laws. Not using E-Verify has the same limited consequence -- the loss of thepresumption of compliance. The death penalty is not triggeredautomatically. The federal government touts the program as capableof handling many more inquiries, Chamber of Commerce of UnitedStates of America v. Whiting, 563 U.S. __(2011).

Our immigration policy needs to be reformed. Dismantling E-Verify should be part of the effort.

Scott Forsyth is a partner in Forsyth & Forsyth and serves ascounsel to the local chapter of the ACLU. He may be contacted at(585) 262-3400 or scott@forsythlawfirm.com.