Will the New E-Verify Security Enhancement Help or Hurt?

“E-Verify” is an internet-based system, operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). Used in conjunction with Form I-9, Employment Eligibility Verification, it allows employers to verify the identity and employment eligibility of new employees. In light of widespread criticism that E-Verify is flawed, the federal government has attempted to make some modifications to the E-Verify system to improve the system’s accuracy and efficiency, enhance customer service, and reduce fraud and misuse.

Most recently, on November 18, 2013, U.S. Citizenship and Immigration Services (USCIS) Director, Alejandro Mayorkas, announced the release of an enhancement to the E-Verify program that is intended to combat identity fraud. The enhancement is designed to identify and deter the fraudulent use of Social Security numbers (SSNs) to secure employment authorization by enabling USCIS to lock an SSN within the E-Verify system if it appears to have been misused (for example, stolen, borrowed, or purchased from another individual), thus protecting it from further potential fraudulent use in E-Verify. Specifically, USCIS will use “a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify,” similar to credit card companies’ practice of disabling stolen cards.

E-Verify will generate a “Tentative Nonconfirmation” (TNC) if an employee attempts to use a locked SSN. The employee who receives the TNC will then be required to contest the finding at a local SSA field office. Provided an SSA field officer confirms that the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify.

Potential Issues

USCIS claims that this new E-Verify enhancement strengthens the program’s “ability to combat identity fraud” through the implementation of standards that have “proven effective in protecting individual identity,” and that the E-Verify safeguard “could assist employees who have had their Social Security numbers stolen or compromised.” Practically speaking, however, the ability to identify SSN misuse is a complex undertaking. Moreover, USCIS has not provided any guidance in terms of how the SSA will determine whether the employee in question is the genuine owner of the SSN or whether it has the resources to do so, nor has it outlined procedures for inter-agency cooperation. Further, locking an  SSN number would affect not only the imposter who fraudulently uses the SSN, but presumably also the true owner who would, likewise, have to resolve the TNC with the SSA potentially each time he or she begins working with a new E-Verify-enrolled employer. Resolving TNCs might prove to be a time-consuming exercise both for the genuine SSN owners and employers that use the E-Verify system.

Faced with this situation, employers must also be mindful of the fact that no adverse employment action may be taken against an employee while a TNC matter remains unresolved. This includes terminating employment, suspending employment, withholding pay or training, delaying a start date, or otherwise limiting employment. Employers are reminded to follow the terms of the memorandum of understanding (MOU), the legal document describing the agreement between DHS and the company, as well as guidance set forth in the E-Verify manuals.

Federal and state governments are moving towards requiring E-Verify. Ogletree Deakins can help with all phases of implementation, including developing specific policies and protocols for E-Verify usage and training personnel regarding the special rules applicable to the E-Verify system. Our immigration compliance attorneys are uniquely positioned to serve as a resource on this expanding area of immigration law.

We are closely monitoring developments with respect to the E-Verify upgrade and will provide updates as more information becomes available.