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With immigration grabbing headlines, E-Verify demands attention

Earlier this month, The Country Club of Jackson entered into a deferred prosecution agreement with the U.S. Department of Justice and the U.S. Attorney’s Office for the Southern District of Mississippi stemming from violations of immigration and Social Security laws, according to the U.S. Attorney’s Office.

Under terms of the agreement, which offers dismissal with prejudice of the criminal complaint if compliance is met within 30 days of the agreement, The Country Club of Jackson will pay a fine of $214,500 and agreed to other terms, including the use of the E-Verify System.

Many business owners might be wondering: What is E-Verify, and is it good for business?

E-Verify or else…

E-Verify (formerly called the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based, joint effort of the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Service and Social Security Administration (SSA). On its Web site, DHS calls E-Verify “the best means available for determining employment eligibility of new hires and the validity of their Social Security numbers.”

However, the system has its detractors, who point to high error reports and other problems. The program has strictly been voluntary in most states, including Mississippi. But that may soon change.

On February 12, the Mississippi Senate passed S.B. 2564, which contains a provision requiring employers to use E-Verify. Its principal author is Republican Sen. Chris D. McDaniel (District 42-Jones County). He was joined by five co-authors — three Republicans and two Democrats.

Another Senate bill — S.B. 2988, passed out of committee February 14, and it also requires E-Verify usage. Its principal author is Republican Sen. Michael Watson (District 51-Jackson), a co-author on S.B. 2564. McDaniel is co-author on S.B. 2988 along with Republican Sen. Lee Yancey (District 20-Madison/Rankin counties), who also co-authored S.B. 2564.

Only four states — Arizona, Colorado, Georgia and Oklahoma — have laws requiring the use of E-Verify, and the possibility of the system becoming mandatory in Mississippi has many worried.

Questions abound

Gabriela Ungo is one of the concerned. She is an attorney with the Tupelo-based Walker & Ungo Immigration Law Firm, and she points to many reports and studies on E-Verify to back her worries. For example, she cites the Immigration Policy Center’s study “Basic Pilot/E-Verify: Not a Magic Bullet,” which found inaccurate federal databases, the potential to use the system to discriminate against workers, the possible compromise of workers’ privacy and insufficient technological infrastructure.

Ungo says, “Other problems we see include: making E-Verify mandatory would increase DHS’ and SSA’s bureaucracy and backlog; employers must be willing to permit DHS and SSA to make periodic visits onsite to review E-Verify records; and, failure to notify DHS of any employee still on payroll after final confirmation can result in a fine of $500 to $1,000 per failure.”

Others are worried about enforcement and liability, too. In a prepared statement, Jay Moon, president of the Mississippi Manufacturers Association (MMA), says, “The Mississippi Manufacturers Association’s immigration policy states that MMA does not support employers who knowingly or intentionally hire illegal or undocumented workers in violation of current law. However, MMA believes that any employer who attempts to verify the legality of its employees using an approved method, whether it’s by I-9 verification or the E-Verify System, should not be penalized or prosecuted. If an employer can show that it has followed the law and has made a good faith effort to hire legal, documented workers, then that employer should not be penalized if the verification system fails to identify an employee as an illegal immigrant.”

Moon is not the only one asking what happens if an employer attempts to legitimately verify employment, but is still held accountable if later it is found to have undocumented workers? Throw in E-Verify’s error rate, it is understandable why business and industry is highly concerned.

Perry Nations, head of the Associated General Contractors of Mississippi, has many questions pertaining to E-Verify and proposed legislation. For example, much of the current legislation requires use of both E-Verify and the other employment authentication system, I-9. Nations wonders what happens if an employee checks out on I-9, but is rejected by E-Verify. What’s the employer to do?

Another concern is that only four states are currently requiring E-Verify. One, Illinois, has a law prohibiting E-Verify. For companies with multi-state operations, this can become a compliance headache.

“The federal government should be doing this,” Nations says. “There needs to be one source, and that should be the federal government. I can’t help but wonder — how hard can it be to verify Social Security numbers?”

This may leave many employers wondering what to do. There seems to be no easy answers, and it is not one-size-fits-all. Ungo says E-Verify, if used appropriately, can be great for some businesses.

“With regards to the E-Verify program, I inform my clients the pros and cons of the system,” Ungo says. “For example, employers with a higher percentage of undocumented workers or greater usage of fraudulent documents may find the E-Verify program as a more effective way to detect unauthorized workers before SSA sends out a ‘No Match’ letter. In this regard, not using E-Verify means the employer can not take advantage of the ‘rebuttable presumption defense’ to sanctions if the employer did not ‘knowingly and intentionally’ hire unauthorized workers, if it is determined later that a worker is unauthorized or an I-9 document was falsified.

“On the other hand, improper use of E-Verify exposes an employer to possible claims of discrimination if E-Verify is used selectively. If a company opts to use this program, E-Verify should not be used as pre-employment screening, and it should be used consistently for all new hires.”

Ungo adds that, with all this confusion, she is advising clients to re-evaluate their corporate compliance program in the area of employment verification and immigration policies.

S.B. 2564 is not the only bill that would require the use of E-Verify. The House has its own bill — H.B. 949 — that uses much the same language as S.B. 2564, including the E-Verify requirement. It was sent to the Judiciary Committee February 4. At press time, it was still there.

H.B. 949’s principal author is Rep. John Moore (District 60-Rankin and Simpson counties). The bill has 19 co-authors — 17 Republicans and two Democrats.

Contact MBJ staff writer Wally Northway at wally.northway@msbusiness.com.

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