Immigration Bill Takes Aim at Employers of Undocumented Workers

Small business support for mandatory employment-eligibility verification, such as E-Verify, may be short-lived. Here's why.

 

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As the immigration bill makes its way through the Senate, some proposed amendments are setting off heated scrimmages between civil liberties advocates and conservatives. One such proposal calls for the nationwide expansion of an electronic employment eligibility verification system called E-Verify. 

E-Verify, an internet-based program, helps employers determine if the name and social security on an I-9 form and other documents provided by an employee match the information in the Social Security Administration's (SSA) database.

Already implemented in handful of states, mandatory participation in E-Verify is supported by the majority of small businesses, according to a recent study by National Small Business Association (NSBA). Currently, a quarter of small businesses use E-Verify, while 57 percent of small businesses support use of E-Verify. Even more of them, 67 percent, support the use of an improved E-Verify system "with certain safe harbors for small business." The safe harbor provision protects employers who followed E-Verify instructions, but still end up employing an undocumented worker. 

However, the program, which Washington hopes will apply some pressure on employers to refrain from hiring undocumented immigrants, may have the adverse affect of costing some eligible workers their shot at employment. According to NSBA, 17 percent of small businesses employ immigrant workers.

Currently, four states--Alabama, Arizona, Mississippi and South Carolina--require that all state agencies, private, and public businesses use E-Verify to confirm the legal status of their employees. In Utah, all businesses with more than 15 employees are required to use E-Verify. Additionally, a number of states such as Colorado and Louisiana require contractors to use the program in order to receive government contracts. Only California and Indiana prohibit municipalities from passing mandatory E-Verify ordinances. 

One of the crucial points blocking E-Verify's from nationwide implementation are erroneous tentative non-confirmations (TNC). Erroneous TNC can occur when potential eligible employees do not update their naturalization status with SSA or do not inform SSA of changes in name. Data entry errors, either on part of the employer, employee, or SSA can also be responsible for mistaken TNCs.

Such erroneous TNCs can cost eligible workers their shot at employment. And "because such TNCs are more likely to affect foreign-born employees, they can lead to the appearance of discrimination," noted a 2010 Government Accountability Office (GAO) report. 

Eligible employees are given an opportunity to contest the TNC and have the chance to correct the mistake if one was made. In the last fiscal year, only 0.26 percent of TNCs--52,500 cases--were corrected after being contested, reports USCIS. GAO report found that the E-Verify system has a 98 percent accuracy rate. 

The devil is in the details, Molly Brogan, vice president of public affairs at NSBA, told Inc. According to her, the percentage of erroneous TNCs might be low, but if the use of E-Verify is mandated nationally and is required of all employers, that small percentage will come to represent a significant number of employees.

According to USCIS, more than 409,000 employers, seven percent of all businesses, including public and private sector businesses, used E-Verify in the last fiscal year. Overall, out of the 20.2 million cases that were processed, 221,155 cases were found "not work authorized."

In states, where use of E-Verify is required, noncompliance penalties help shift responsibility onto the employer by forcing them to verify potential employees' eligibility. For instance, Alabama businesses that do not use E-Verify to confirm their new hires risk suspension of their businesses. Previously, employers were not held accountable for hiring employees whose documentation did not match or was obtained through illegal channels.

Todd McCracken, NSBA president, said in a statement that with many leading proposals containing "penalties of up to $75,000 and 10 years in prison," small business support for nation wide expansion and implementation of the existing program is likely to decrease.