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A Javelin Strategy & Research report cited by Reuters found that, in 2010, 3.5% of the U.S. population were victims of identity theft, at a cost of $37 billion. For those whose identities have been stolen, the road to clearing one’s name is lengthy. Credit ratings are damaged when accounts are opened in a victim’s name and delinquencies accrue. Given that some businesses inquire into credit history when conducting pre-employment background checks, negative scores could impact a victim’s employability. Even if accounts are not opened and credit not damaged, there remains the issue of revenue agencies seeking unpaid taxes on wages “earned” by victims, i.e., wages attributed to them but in reality earned by individuals who unlawfully used their name and Social Security number.

Administrative Burden

Businesses unwilling to use E-Verify often point to the associated administrative burden. The Department of Homeland Security (DHS), which runs E-Verify, acknowledges that simply preparing to use E-Verify requires between a few days to several months, depending on a business’s size and processes. Human resources staff must devote time to enrolling in the program, and learning how to use it (via DHS manuals or online tutorials). Conducting the verification process and addressing issues that arise if E-Verify finds an individual ineligible to work requires time and resources.

However, the risks of noncompliance are significant. As previously reported here, the current administration’s approach to immigration enforcement centers upon employer audits. In April 2009, DHS issued a fact sheet, which revised its Worksite Enforcement Strategy to strengthen its focus on employer noncompliance. Two months later, 652 businesses received Notices of Inspections from Immigration and Customs Enforcement; at the end of the year, in December 2009, 1,000 faced audits, and the trend continues in 2010. From October 2009 to July 2010, businesses in Texas alone were fined over $600,000.

Also, although federal law makes E-Verify mandatory only for federal contractors, an increasing number of state and local governments have passed laws mandating the use of E-Verify. These laws typically apply only to public employers and contractors, but some states and municipalities require private employers to use E-Verify. In certain states and municipalities with proposed or actual immigration-related laws, use of E-Verify benefits employers because it provides a good faith defense to hiring violations.

The Legal Workforce

The lack of an available and willing legal workforce is another justification companies put forth for not using E-Verify. As an agricultural employer told The Fresno Bee, “[E-Verify] may work for Costco, but Costco doesn't have the problem I have,” i.e., a legal workforce shortage. The United Farm Workers of America, a large agricultural workers union, recently ran a campaign called “Take Our Jobs” that challenged individuals with legal U.S. work status to take illegal immigrants’ positions working in the fields. As noted by The Hill, only seven individuals accepted the challenge, the most notable being Stephen Colbert of Comedy Central’s “The Colbert Report,” who testified (in character) about his experience before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law.

Farmers interviewed by The Fresno Bee stated their preference for a legal workforce, and some pending bills aim for this result. In October 2010, Senator Saxby Chambliss introduced a bill (S. 3912) that aims to provide a non-amnesty option for temporary agricultural workers and streamline the H-2A temporary worker program. The Menendez-Leahy comprehensive immigration reform bill seeks, among other things, to address shortcomings in existing worker programs that have led to undocumented migration.

Employers or individuals wanting to learn more about E-Verify can read Littler’s Insight, A Basic Guide to E-Verify and Related Immigration Compliance: Everything Federal Contractors and Others Need to Know to Comply with E-Verify Requirements, this blog’s E-Verify entries, or visit the DHS E-Verify page.

More often than not, according to the Chronicle’s analysis of received documents, no criminal or civil penalties will follow if an employer’s payroll is purged of undocumented employees. Although audits have become the current administration’s immigration enforcement strategy, and ICE has issued fines for noncompliance, the Chronicle’s report suggests that many of the larger fines resulted from actions taken (or commenced) during the previous administration.

In response to the analysis, Brett Dreyer, the head of ICE’s worksite enforcement unit, stated that ICE tries to identify and focus on employers who are “turning a blind eye” to workers’ legal status (as opposed to those who unintentionally accept fraudulent documents). 

Photo credit: dem10

Employers can create an E-Verify case before the individual’s first day of work for pay if the individual has accepted an employment offer and has completed a Form I-9. The Hire Date is the date the E-Verify case is created.

Example: An employee accepts an employment offer and completes a Form I-9 on Thursday, but will not begin work until Monday. The employer creates an E-Verify case on Friday, the day after both conditions were met. Friday is the Hire Date.

Employers can also create an E-Verify case on or after the first day an employee works for pay. However, the employer must create a case no later than the third business day after the employee first works for pay.

Example: A business only operates Monday through Friday. An employee first works for pay on Monday, which is the Hire Date. For Three-Day Rule purposes, the first day is excluded from calculating the compliance deadline. Accordingly, Thursday is the third business day after the Hire Date, and the last day for an employer to create an E-Verify case.

If an audit reveals that a business employs illegal workers, the employer must fire those employees or face criminal charges. For employers in migrant-driven industries, audits significantly and immediately deplete their workforces, making it difficult to conduct business. For dismissed employees, finding work in local or surrounding areas is difficult because potential employers fear being audited themselves.

Though ICE officials contend the audits’ targets are egregious labor and immigration law violators, some contend that the agency is missing its mark by going after employee-friendly businesses. Others, however, contend that the agency’s efforts are insufficient because employees found to be illegal immigrants are being fired instead of being arrested and deported.

• PWD policy (background and prevailing wage factors);
• how PWDs are made (i.e., whether wages are determined by a collective bargaining agreement, or by a Bureau of Labor Statistics or employer survey);
• procedural details; and
• how to challenge a PWD.

The guidance document also contains seven appendices that provide further guidance, checklists, worksheets and forms. 

An audit involves ICE reviewing a company’s Form I-9s to verify employees’ identities and eligibility to work in the country. In 2008, fines increased by 25%, with the result that first-time offenders face penalties of between $375 to $3,200 for each unauthorized employee. In 2009, ICE has ordered companies to pay $800,000 in fines, more than four times the amount imposed in 2008.

Photo credit: Tom Ventura