Washington, D.C. (January 19, 2011) --  On January 18, 2011, the US Government Accountability Office (GAO) released its December 17, 2010 report entitled, “Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain.”  Provided is a summary of the GAO’s findings, and where we believe USCIS’ Verification Division may move to implement modifications to the existing system based upon the GAO’s recommendations.

The report is a summary of the review GAO conducted to assess how USCIS and SSA have been able to ensure accuracy of the verification process in E-Verify and whether either (or both) have taken measures to combat fraud.  Specifically, GAO examined efforts taken by both agencies to (1) reduce tentative nonconfirmations (TNCs), (2) safeguard private personal information submitted, and (3) prepare for the increased use of the program that may result from either increased state and local legislation (executive action) or a federal mandate.

Two of the conclusions of the report should be of great concern to employers:

(1) Because TNCs are more likely to affect foreign-born employees, the issuance of false TNCs (TNCs issued commonly because names are recorded differently on various ID and work authorization documents) will likely lead to increased allegations of discrimination; and

(2) E-Verify remains exceedingly vulnerable to identity theft and employer fraud.

Some of the other significant findings:

• Employees are limited in their ability to identify the source of and how to correct information in the DHS and SSA databases (including the significant delay in the correction process—commonly taking an average of 104 days).
   
• Long-term cost associated with the administration of the E-Verify program and complementary national systems and SSA databases do not reliably depict current budgetary allocations for the costs of administration.
   
• Securing sufficient resources to effectively execute the program plans for the future has not been anticipated and may not be properly anticipated in budgetary projections.

• Recommended fixes to the program will result in increased transactions costs, including the resolution of false TNCs, administrative leave for employees to allow them to resolve erroneous mismatches, and additional training costs to educate the employees about reducing the likelihood of name-related, erroneous TNCs.

• USCIS should consider providing an employee-accessible portal that would allow employees to correct inaccuracies or inconsistencies within DHS databases.
   
• USCIS and SSA should finalize the terms of the service-level agreement that defines the requirements of SSA to establish and maintain the capacity and availability of its system components.

• USCIS should consider a budget for the life-cycle cost of the program that reflects the four characteristics of a reliable estimate consistent with best practices—essentially, that long-term there is enough resources to ensure the program is comprehensive, well-documented, accurate, and credible.

Notwithstanding the findings, there is a clear message contained in the report:  Comprehensive reform is required to root-out the incidence of document fraud. The use of biometrics in identification/authorization documentation is the only likely cure of the ills currently inherent in the system. 

Until that time, USCIS must reallocate resources to address fraud issues—doubling the number of monitoring and compliance staff to oversee employers’ use of E-Verify AND allocating resources to recognize and correct mismatched information in the various DHS databases. 

In other words, instead of addressing the defects of the verification paradigm, the Government is allocating additional resources to address problems with the process that cannot be cured with the current system.  Notably,

• Senior E-Verify program officials reported that the Monitoring and Compliance Branch is limited in its ability to fully identify patterns and trends in the data that could signal employers’ noncompliance, but E-Verify will be committing $6M in implementing advanced data systems to gain the capacity to conduct complex analyses of E-Verify data.

• Senior E-Verify program officials will also be reaching out to employers who fail to master the training tutorial—either with a compliance letter (a compliance failure notification) or a phone call—to further assist employers with the E-Verify process. They  will then follow up with the “targeted” employers to assess whether the prior non-compliant behavior has been adjusted.

• Senior E-Verify and ICE worksite enforcement agents reported that they are currently coordinating to help USCIS better target its monitoring efforts because (1) login profiles to the E-Verify program are not monitored, (2) USCIS cannot currently monitor the extent to which employers follow the MOU provisions, and (3) employers who do not respond and remedy noncompliant behavior are not adequately sanctioned under the current program.

Ultimately, a great deal of the burden to address the deficiencies of the current verification system will fall to employers.  The current patchwork system cannot address the underlying reality that as long as 11 or so million unauthorized employees require employment to survive, a robust market of sophisticated, fraudulent documents will flourish.  Until the problems are adequately addressed, increased oversight and monitoring of the program will result in increased scrutiny of the employer by both ICE and USCIS, with the risk that compliance policy modification may result in increased allegations of discrimination.

Sure seems like one step forward, one step back.

This Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice. 

Media Contact: Lourdes Brezo-Martinez, Greenberg Traurig, PA, martinezl@gtlaw.com, 212-801-2131.